1



# Hazardous and Solid Waste Management

System;

Disposal of Coal Combustion Residuals from

Electric Utilities;

(Docket # EPA

- HQ

- RCRA

- 2009

- 0640)



# Comment Summary and Response Document

Volume 4: Location Restrictions

December, 20142

Background

The U.S. Environmental Protection Agency (Agency or EPA) proposed regulations for

the management of coal combustion residuals (CCRs) which was published in the Federal

Register on June 21, 2010. This proposal, under the Resource Conservation and Recovery Act

(RCRA), addressed the risks from disposal of CCRs generated from the combustion of coal at

electric utilities and from independent power producers. Two regulatory options were proposed.

Under the first option, EPA proposed to reverse its August 1993 Bevill Regulatory and May

2000 Bevill Regulatory Determinations regarding CCR and to list CCRs as special wastes

subject to hazardous waste regulations under subtitle C of RCRA when destined for disposal in

landfill or surface impoundments. Under the seco nd option, EPA proposed to leave the Bevill

determination in place and regulate the disposal of CCR as non

- hazardous solid waste under

subtitle D of RCRA by issuing minimum national criteria. Both options would require

composite liners, groundwater monito ring, structural stability requirements, corrective action,

and closure/post closure care.

EPA also solicited comments on all aspects of both proposed options. The Agency

received over 450,000 comments on the proposed rule. The majority of the comment s focused

on which regulatory path the Agency should pursue for regulating CCRs, i.e., RCRA’s subtitle C

or subtitle D. EPA also conducted eight public hearings and took additional comments on the

proposed rule. EPA has established three dockets for this regulatory action under Docket ID No.

EPA

- HQ

- RCRA

- 2009

- 0640, Docket ID No. EPA

- HQ

- RCRA

- 2011

- 0392, and Docket ID No.

EPA

- HQ

- RCRA

- 2012

- 0028

. All documents in these dockets are available at

http://www.regulations.gov

. Although listed in the index, some information is not publicly3

available, e.g., Confidential Business Information (CBI) or other information whose disclosure is

restricted by statute. Certain other material, such as copyrighte d material, is not placed on the

Internet and will be publicly available only in hard copy form. Publicly available docket

materials are available either electronically in http://www.regulations.gov or in hard copy at the

OSWER Docket, EPA/DC, WJC West Building, Room 3334, 1301 Constitution Ave., NW,

Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday

through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202) 566

– 1744, and the telephone number for the OSWER Docket is 202

– 566

– 0276.

After reviewing all the comments and additional data received, EPA is promulgating a

final rule to regulate the disposal of CCR as solid waste under Subtitle D of RCRA. This rule

addresses the risks from structural failures of CCR surface impoundments, groundwater

contamination from the improper management of CCR in landfills and surface impoundments

and fugitive dust emissions.

The Agency has deve loped seventeen volumes of summarizing comments on major

topics covered in the proposed rule (see table below) and the Agency’s responses to those

comments, as well as a separate volume summarizing comments provided during public

hearings. Since EPA is fi nalizing a rule under subtitle D of RCRA, only those comments

submitted on the proposed subtitle C rule that are also applicable to the final rule are addressed

in the comment and response documents.

Volume Topic

1 General Comments4

Volume Topic

2 RCRA Subtitle D Regulatory Approach (Legal issues/Self

- implementing

Design/Reliance on Certifications by an Independent Professional

Engineer/Recordkeeping, State Submissions, Posting to the

Internet/Finance Assurance/Alternative Approaches)

3 Scope and Purpose/Effective Dates/Applicability/Off

- site

Disposal/Definitions

4 Location Restrictions

5 Design Criteria: Liners and Leachate Collection Systems

6 Design Criteria: Structural Integrity

7 Operating Criteria: Endangered species/Surface water/Inspections/Run

- on

Run

- off

8 Operating Criteria: Air Criteria

9 Groundwater and Corrective Action

10 Closure and Post

- Closure Care

11 Additional Comments including Overfills/ Harmonization with ELG.

12 Beneficial Use

13 Risk Assessment

14 State Authorities, Programs and Regulations

15 Compendium of Damage Cases

16 Regulatory Impact Analysis (RIA)

17 EPA’s Assessment Program5

Section 3.7.1

- General facility requirements including location restrictions, e.g., prohibit siting in floodplain or seismic impact area (35181) Total Number of Submissions: 12 Total Number of Comments: 14



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 02821

- 3 

### Organization 1 

### : Missouri Coalition for the Environment


### Commenter 1 : Matt Ashley Commenter Type: Advocacy Group

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

Fur ther, in keeping with the spirit of prevention, enacting a blanket prohibition on coal ash disposal in floodplains and for use as fill in levees would avoid potentially devastating consequences the flooding of a coal ash impoundment or landfill would cause , and MCE encourages the EPA to do so.

Response: EPA appreciates the commenter’s concern. However as explained in the proposal,

t he Agency believes the existing provisions of §257.3

- 1

, which already apply to facilities with coal ash impoundments located in floodplains, are sufficiently protective and EPA is finalizing this rule as proposed.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 02821

- 9 

### Organization 1 

### : Missouri Coalition for the Environment


### Commenter 1 : Matt Ashley Commenter Type: Advocacy Group

Classifica tion: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 

### Comment Excerpt Text: A protective coal ash regulation is necessary to "tie up loose ends" in coal energy production by ensuring the safest means of disposal for coal ash. In order to achieve this, the new coal ash regulation should:

1. Designate coal ash as a hazardous waste under Subtitle C of RCRA;

2. Prohibit ANY disposal of coal ash in floodplains;

Response: As explained is this finalized rule

, t he Agency believes coal ash disposal is appropriately handled using its Subtitle D authorities. Facilities located in floodplains are6

already subject to provisions of §257.3

- 1 (b)(3) which prohibits disposal practices that would result in the carrying a way of solid waste by waters of a base flood

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05439

- 5 

### Organization 1 

### : Commenter 1 : Robert D. Edstrom, Ph.D. Commenter Type: Private Citizen

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.1 10.5.3.3 

### Comment Excerpt Text: The designation of minimum distances of CCRs to surface water and to seasonal ground water, whether in confined storage or placement for beneficial use, should occur for all cases.

Re sponse: In this rule under §257.60 EPA has finalized a requirement that new CCR landfills, all CCR surface impoundments and all lateral expansions of CCR landfills and CCR surface impoundments must be constructed with a base that is no less than five feet above the uppermost aquifer.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 67 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1 

### Comment Excerpt Text: Page 35181, Column 2: General Facility Requirements including Location Restrictions The department agrees there should be boundary conditions for construct ing new CCR surface impoundments and landfills. In the Tennessee solid waste regulations there are buffer requirements for location of new landfills.

Buffer Zone Standards [From Tennessee Rule 1200

- 1

- 7

- .04(3)(a)] Disposal Facilities must be located, desig ned, constructed, operated, and maintained such that the fill areas are, at a minimum: 1. 100 feet from all property lines; 2. 500 feet from all residences, unless the owner of the residential property agrees in writing to a shorter distance;

3. 500 feet f

rom all wells determined to be downgradient and used as a source of drinking water by humans or livestock; 4. 200 feet from the normal boundaries of springs, streams, lakes, (except that this standard shall not apply to any wet weather conveyance nor to bo dies of water constructed and designed to be a7

part of the facility); and 5. A total site buffer with no constructed appurtenances within 50 feet of the property line.

Response: The Agency appreciates this information on location buffers f rom the State of

Tennessee. And in setting minimum national standards in this rule under §257.60 EPA has

chosen to finalize location buffers for CCR disposal units located above the uppermost aquifer,

in fault areas. States may choose to implement more stringent require ments

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 113 

### Organization 1 

### : Earthjustice et. al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.1 

### Comment Excerpt Text: CCR landfills and surface impoundments should be banned in wetlands, fault areas, seismic impact zones and unstable areas. Consideration should also be given to placing restrictions on landfills and surface impoundments in se nsitive aquifer recharge zones, karst environments, and floodplains. Many of the CCR landfills and surface impoundments, which are already located in floodplains, will be breached in the future if the rivers change course and cut through areas

where wastes have been disposed. New landfills constructed under the promulgated rules should be prohibited from siting in these areas.

Response: Although EPA shares the commenter’s concern regarding the siting of CCR landfills and CCR surface impoundments in sensi tive areas, the Agency disagrees with the assertion that CCR disposal units should be banned from locating in wetlands fault areas, seismic impact zones

and unstable areas. In this rule under §257.60

- .64 EPA has chosen to prohibit locating a new CCR dispo sal unit in wetlands, fault areas, seismic impact zones, and unstable areas (including areas of karst terrane) unless the owner or operator makes a demonstration that the unit me e t s the requirements of a performance standard that serves as the alternative to the location restriction

. EPA did not propose to impose all location requirements on existing CCR landfills because of

the concern that potential disposal capacity shortfalls cou ld result in certain regions of the U.S. if existing CCR landfills in these locations were required to close. As stated in this rule, t he Agency concluded that the potential disposal capacity shortfalls would pose more environmental and public health conce rns
, based on the potential for significant disruption of solid waste

management state

- wide from the closure of these units , t han the potential risks from allowing existing CCR landfills to remain in these locations, given that these units would be subjec t to the design and operating requirements of the rule. Units located in floodplains are already subject to provisions of §257.3

- 1(b)(3)

, which prohibits disposal practices that would result in the carrying away of solid waste by waters of a base flood.8



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07001

- 20 

### Organization 1 

### : Vectren Corporation


### Commenter 1 : Angila M. Reinerford Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.11 

### Comment Excerpt Text: Proposed Seismic Restrictions Unwarranted and Could Have Potentially Severe Cost Impacts on Southwestern Indiana Ratepayers.

As currently proposed, the RCRA Subtitle C regulations would not allow for the cons truction of new CCR landfills in a seismic impact zone. For purposes of this rule, EPA is proposing to define a seismic impact zone as an area having a ten percent or greater probability that the maximum expected horizontal acceleration in hard rock will e xceed 0.10 g in 50 years. Both Vectren's generating facilities are located within a seismic zone as defined by EPA, specifically within the seismic zone of the New Madrid fault. If implemented, Vectren would be prohibited from building a disposal facility on its existing brownfield property, and would require that all

non

- recyclable CCRs generated by Vectren's facilities be trucked to disposal facilities located

85

- 110 miles from its facilities. Vectren has estimated that this seismic prohibition would resu lt in an additional $1 million in annual disposal costs to Vectren's ratepayers if Vectren should be required to haul its CCRs to a disposal facility 100 miles away.

The seismic prohibition impacts more than the individual Vectren units. Upon cursory rev iew of the facilities in southwestern Indiana, northern Kentucky and southern Illinois that would be located within the New Madrid seismic zone and thus prohibited 6'om constructing new disposal

units on site due to the above

- referenced seismic siting rest rictions, Vectren has identified no less than 40 additional generating stations representing approximately 42,000 MWs of coal

- fired generating capacity that would be required to truck CCRs to disposal facilities constructed

outside the defined seismic zone . If Vectren 's facilities generate an average of 500,000 tons of CCRs annually, a quick calculation would indicate that annually over 19 million tons of CCRs from these similarly impacted facilities in the tri

- state region would be required to be disposed of outside the defined seismic zone. In effect, if promulgated, this seismic restriction will have the unintended result of the construction of a "ring" of new hazardous waste disposal facilities on greenfield sites located immediately outside the defined seismic zone. The exponentially increased waste transportation costs and negative environmental impacts of building a ring of new hazardous waste disposal facilities immediately outside the defined seismic zone can not be what EPA intended in this regulat ion.

Response: Under this finalized rule EPA is promulgating regulations for CCR landfills using its

Subtitle D authorities for non

- hazardous solid waste disposal facilities . New CCR landfills are prohibited from locations with in seismic impact zones unless the owner or operator can

demonstrate that all structural components including liners, leachate collection and removal systems, and surface water control systems, can withstand the maximum horizontal acceleration

in lithified earth material for the site. This is not a ban, but a minimum national performance9

standard for new CCR landfills and other CCR disposal facilities located in these sensitive areas

. Among other benefits, the finalized provisions are designed to prevent potential CCR releases

f rom landfills due to seismic shaking.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 17 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO)


### Commenter 1 : Stephen A. Cobb (Al) Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1 

### Comment Excerpt Text: The validity of EPA's assumption that, in most cases, CCRs would continue to be disposed on

site under the Subtitle C o ption is questionable. Many existing coal burning power plants potentially affected by this rule are located in flood plains. Federal and more stringent State specific siting requirements for hazardous waste land disposal facilities would, in many cases,

s ignificantly limit the locations where these facilities can be constructed. Hence, plans for development of regional disposal facilities/capacity may need to be seriously considered. Should such regional facilities be developed, this would, when compared w ith on

- site management, cause a huge increase in over

- the

- road and rail transportation of CCRs, leading to significant increases in associated greenhouse gas generation, highway traffic safety issues and likely spillage of CCRs along haul routes, potential ly leading to the type of environmental damage that the rule is intended to prevent. Community issues and concerns related to siting of and transportation of CCRs through their communities to regional disposal facilities could also be significant. These as pects should be examined more carefully by EPA relative to the governing assumption of continuing on

- site CCR management and disposal before rendering a final decision on how to regulate CCRs.

Response: EPA appreciates the commenter’s concerns regarding the potential environmental damages from off

- site CCR management under the Subtitle C option, but the Agency in this rule has chosen to promulgate regulations for CCR disposal facilities using its Subtitle D authorities

for non

- hazardous solid waste

. Nevertheless, the Agency here is responding to these concerns because similar issues can be raised with regard to CCR disposal under S ubtitle D . The

commenter presumes that faci lities would stop using on

- site disposal at current disposal rates. However, since EPA is not implementing a subtitle C rule, it is likely there will not be a significant shift from on

- site CCR disposal to off

- site CCR disposal. Moreover, the Agency

notes that the sp illing of an entire truck of CCRs would not create the types of risks/damages that

it estimate s from the tens or even hundreds of acres of disposed CCRs present in landfills and impoundments without liners.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 39 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC)


### Commenter 1 : Keith Bastian10

Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
In addition, th e proposed definition of "existing CCR landfill" should be modified to include lateral expansions of operating units where such expansion is within the site footprint of an area already approved and permitted by the state. There is no environmental or heal th

- based reason for not including approved and permitted locations within the definition of an existing CCR landfill. The undeveloped portion of the approved permitted site has undergone environmental and related technical review by the permitting authorit ies and has been approved for the location of a CCR landfill. To exclude a location that has otherwise already been permitted for a CCR landfill from the definition of an "existing" landfill merely because there is not a binding

contractual commitment to b egin construction would illlfairly subject these areas to the design and operating standards for "new CCR landfills," when identical locations are considered "existing CCR landfills" subject to different operating standards based merely on the existence of a contract to commence construction. Such a distinction is arbitrary and capricious and provides no practical benefit.

Response: In this rule E PA is establishing minimum national criteria that apply to facilities that manage CCRs

. Under the present regulatory structure, federal requirements apply directly to

facilities

, and operate independen t of state involvement

. As a practical matter this means the definition of ‘existing CCR landfill’ as defined in this rule is independent of t he undeveloped area already approved and permitted by the State. Therefore, the facility owner and operator must simultaneously comply with both existing state and federal provisions. As explained in the preamble, EPA believes the additional federal prot ections are necessary to protect health and the

environment based on the information that is currently available.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 54 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig

Commenter Type: Trade Association

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.3 4.4.4.4 4.4.4.6 4.4.4.7 

### Comment Excerpt Text:

Seismic Location Criteria

The Proposed Rule contains several location restriction criteria, including seismic impact zone criteria. US EPA requests input on the seismic criterion and how it should be applied.

Attachment M is a Technical Memo showing areas in the United States that would be impacted11

by the two approaches pro posed by US EPA in the Proposed Rule (EPRI, 2010). The purpose of developing this information was to determine how many power plant facilities would be impacted by the seismic impact criteria. The seismic impact zones were based on data generated by the Un ited States Geological Survey (USGS). Locations of the power plants listed in the RIA are also shown on these maps.

In the first approach, US EPA suggested a possible exclusion for landfills in seismic impact zones, defined as areas with a peak ground acc eleration greater than 0.1 g (earth’s gravitational pull). Approximately 148 power plants would fall within this seismic impact zone. The proposal appears to allow variances for sites within the seismic zone based on a demonstration that the site is design ed to withstand the maximum horizontal ground acceleration in that area. In a second approach, US EPA is considering a standard that requires all facilities to demonstrate stability under the maximum ground acceleration at the facility site.

An exclusion of CCR landfills in these seismic impact zones (0.1 g peak ground acceleration) would require the 148 plants located within that zone to either demonstrate stability, add additional design features to meet the stability requirement, or go off

- site to dispo se of their CCRs. Similarly, the second approach would require all facilities to either demonstrate that standard design met the stability requirement, or to add additional design features in order to meet the stability requirement. Design features needed to meet the seismic impact zone stability requirement will vary based on site

- specific conditions (e.g., facility size, types of soils present). The potential for siting restrictions or the additional costs associated with the seismic impact

zone criteria were not evaluated by EPRI.

Response: The commenter has slightly mischaracterized the seismic location criteria proposed by EPA. Under §257.63 the Agency proposed that new CCR landfills, new CCR surface impoundments and all lateral expansions be prohibit ed from locating in a seismic impact zone unless a demonstration is made that all containment structures are designed to resist the

maximum horizontal acceleratio n in lithified earth material for the site . EPA proposed to define seismic impact zone one of two ways, either as an area having a 10 percent or greater probability that the maximum expected horizontal acceleration in horizontal rock will exceed 0.10g in 250

years, or alternatively an area having a 2 percent to 10 percent probability of gro und motion in 50 years . Under both approaches CCR disposal units would have to be able to withstand the expected maximum horizontal acceleration for the area before they could be located in the seismic impact zone. The Agency did not propose to apply the seismic location standard to

existi ng CCR landfills, only new ones and all lateral expansions. In this rule EPA has finalized

the seismic location prohibition as proposed. The Agency appreciates the information provided by the commenter related to the n umber of CCR facilities affected by the location prohibition

Section 4.4.4

- Location restrictions and individual location requirements (35197

- 35202) Total Number of Submissions: 19 Total Number of Comments: 2612



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05439

- 10 

### Organization 1 

### : Commenter 1 : Robert D. Edstrom, Ph.D. Commenter Type: Private Citizen

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2 

### Comment Excerpt Text:

I wo uld also respectfully submit for your consideration the following additional restrictions on CCR placement under subtitle D: 1) a minimum depth to the seasonal average ground water table based on site specific soil characteristics and leaching characterist ics of the CCR; 2) limit CCRs to be used only in encapsulated applications where the CCRs become part of the infrastructural matrix; and 3) set liability limits for governmental organizations building infrastructure that use CCRs in such projects.

Response : In this final rule, EPA has finalized a requirement that new CCR landfills, all CCR surface impoundments and all lateral expansions of CCR landfills and CCR surface impoundments must be constructed with a base that is located no less than five feet above the

upper limit of the uppermost aquifer. To take into consideration the possibility of such large

seasonal fluctuations in the watertable , EPA has changed the definition of “uppermost aquifer” to specify that the measurement of the upper limit of the aquifer must be made at a point nearest to the natural ground surface to which the aquifer rises during the wet season.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06018

- 6 

### Organization 1 

### : Indiana Department of Environmental Management (IDEM)


### Commenter 1 : Thomas W. Easterly Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5 

### Comment Excerpt Text: If the Subtitle D option is chosen, IDEM is recommending matching t he proposed location restriction and design standards with those of MSWLFs, so CCRs may continue to be managed

in MSWLFs.

Response: T his final rule establishes five location restrictions under Subtitle D that are similar,

but not identical to those for M SWLFs . The location criteria include restrictions relating to placement of CCR above the uppermost aquifer, in wetlands, within fault areas, in seismic impact zones, and in unstable areas. All of these location restrictions require the owner or

operator of a CCR unit to demonstrate that they meet the specific criteria. As discussed elsewhere in this preamble, the five location restrictions apply to all new CCR landfills, all new and existing CCR surface impoundments, and all lateral expansions of CCR uni ts; however, existing CCR landfills are only subject to the location restriction for unstable areas. As stated in13

the preamble of this rule, the Agency sees no need to impose duplicative requirements for MSW landfills that receive CCR. Consequently, the final rule excludes MSW landfills from the requirements of the rule by adding them in a list of excluded facilities or activities under §

257.50.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06252

- 13 

### Organization 1 

### : Minnkota Power Cooperative, Inc. (Minnkota)


### Commenter 1 : John T. Graves Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA should not apply location restrictions to existing surface impoundment s or landfills.

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply location restrictions to existing surface impoundments or landfills. In the proposed rule preamble, EPA explained the rationale for applying today’s provisions to existing CCR surface impoundments, and the commenters have submitted nothing to rebut that rationale. Thus, EPA maintains its determination that application of the location standards to existing CCR surface impoundments is necessary to achie ve the standard in section 4004(a). Absent the location restrictions being promulgated, the risk of impacts to human health and the environment from the rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas

would ex ceed acceptable levels. In addition, t he Agency is finalizing, as proposed, the unstable area location restriction for existing CCR landfills because the record clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains ) have and in all likelihood would continue, in the absence of the restrictions in the final rule, to result in damage cases where constituents from CCR are released affecting both groundwater and surface waters. As the Agen cy stated in the proposed rule, the impacts resulting from the failure of CCR units from location instability are of far more concern than any disposal capacity concerns resulting from the closure of existing CCR disposal units in unstable areas.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 7 

### Organization 1 

### : Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter 1 : Chris M. Hobson Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:14



### Comment Excerpt Text: 2. EPA Should Revise Location Restrictions to Accommodate Demonstrations of Safety at New

and Existi ng Facilities.

The existence of location

- based concerns such as fault lines, seismicity, and wetlands should not result in an absolute prohibition against siting a CCB facility or allowing existing sites to continue in operation. EPA should not apply loc ation restrictions in a manner that precludes continued operation of existing facilities, subject to reasonable efforts to confirm that existing facilities are protective of safety, human health, and the environment. Rather, any regulatory

standards should require the facility owner to take these issues into account and demonstrate design and engineering features that address the issues and provide for an adequate margin of safety.

For example, any new regulations should allow surface impoundments that suc cessfully manage

wet

- handled CCBs to remain in operation, because they present minimal risk to groundwater and

do not threaten human health or the environment. If available information demonstrates that an existing surface impoundment presents a minimal ri sk to groundwater (e.g., existing liner information; groundwater data showing insignificant impacts; water

- supply well surveys indicating a sufficient distance to nearest receptors; favorable hydrogeology (e.g., hydraulic conductivity, presence of confinin g beds); natural attenuation capacity of the geologic media; groundwater modeling; risk assessments), then operation of the impoundment should be allowed to continue. For example, many new gypsum disposal facilities have composite liners with

leachate coll ection and removal systems. The facilities have been designed to withstand the 10% probable exceedance (“PE”) in 250 years or 2% PE in 50 years seismic event and have been designed to handle water in the unit as well as a dry facility. Accordingly, these f acilities should be allowed to continue receiving CCBs. Management of CCB storage facilities should, at a minimum, incorporate a variance process allowing for surface impoundments that manage wet

handled CCBs to remain in operation because they present min imal risk to groundwater. Southern Company provides additional comments on particular location restrictions below, based on our inhouse expertise and years of experience operating surface impoundments and

landfills

Response: For most location restrictions

, EPA agrees with the commenter’s assertion that the

existence of location

- based concerns should not result in in an absolute prohibition against siting a CCR disposal unit or allowing existing sites to operate. A s stated in the preamble of the proposal, and finalized today, the se location restrictions do apply to existing surface

i mpoundments, which means that facilities need to either demonstrate that the surface impoundment meets the performance standard that serves as the alternative to the prohibition,

retrofit the unit so that it can meet the performance standard, or close. Nevertheless, if a facility

can demonstrate that an impoundment has sufficient buffer above the uppermost aquifer, and can make the requisite location demonstrations, i t can c ontinue to operate

. In contrast, EPA sees no reason or special argument to adopt more stringent requirements under subtitle D criteria for existing CCR landfills, particularly given the volume of the material and the disruption that

could be involved if these design requirements we re applied

. EPA is making this distinction

because the record indicates that the risks associated with CCR surface impoundments are substantially higher than the risks posed by CCR landfills.15



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 34 

### Organization 1 

### : Duke Energy


### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4 

### Comment Excerpt Te xt: Duke Energy notes that the pre

- construction siting of many of the existing surface impoundments and landfills at Duke Energy stations has been conducted with oversight and review from various state agencies with respect to the same location restriction s that EPA proposes to apply to existing surface impoundments. As such, if Duke Energy had encountered a location restriction at the time it sought approval to construct one of these existing impoundments or landfills, the state would have required mitigat ion steps to address the restriction. Alternatively, the state would have simply denied the initial request to construct.

There were some surface impoundments constructed at Duke Energy stations prior to these location restrictions being promulgated into state regulations. However, as previously noted, none of the inspections at Duke Energy facilities has resulted in any of the impoundments receiving an “unsatisfactory” rating, meaning that not a single impoundment is considered unsafe or requires immediat e or emergency remedial action.

Response: EPA appreciates the commenter’s claim that state agencies have conducted oversight of pre

- construction siting of CCR surface impoundments. However, the Agency has not drawn any conclusions on the adequacy of state programs. In the interim

, t his final rule impose s minimum federal criteria , including location standards, with which CCR landfills and CCR surface impoundments must comply. As stated in the preamble to this final rule, these

reg ulations exist independent of any applicable state criteria, and do not constrain or direct state

action. F acilities must , therefore, comply with both federal and state criteria simultaneously.

EPA further disagrees with the commenter’s claim that the r esults of EPA’s structural integrity assessments show that the imposition of location requirements on existing units are not appropriate or warranted. The risks associated with the catastrophic failure of a CCR surface impoundment, while significant, are not the only risks associated with these disposal units, and did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real and significant potential for these units to contaminate groundwater and surface water sources o f drinking water. Moreover, the structural integrity assessments demonstrated that in the absence of regulatory oversight, serious risks to human health and the environment can arise.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 36 

### Organization 1 

### : Duke Energy16



### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Any requirement to satisfy the location restrictions, without the o ption to mitigate any environmental or stability concerns, could force Duke Energy to unnecessarily transport CCR significant distances for disposal. Consequently, with respect to the Proposed Rule, EPA must not subject existing CCR surface impoundments to location restrictions if those units satisfied all siting requirements in effect at the time of construction and have been operating safely without a demonstrated adverse impact to human health and the environment. Instead, the decision whether to subject existing surface impoundments to the new location restrictions should be based upon an evaluation (from a third

- party professional engineer) of the specific risks posed by such facilities at each location. Where the location restrictions are applied to an existing impoundment, the facility should be allowed to mitigate any environmental concerns or demonstrate that the environmental concerns have already been mitigated in lieu of closure.

Response: EPA disagrees with the commenter's assertion that in order to apply nation al

minimum standards to existing CCR su rface impoundments, specific risks must first be

demonstrate d at each location based upon an evaluation from each individual unit.

. First, i t is well established that an agency may regulate a class of similarly situated [entities] through rulemaking, rather than on the basis of an individualized assessment of every entity that will be subject to the rule. And indeed, Congress specifically direc ted EPA to proceed by rulemaking to

establish minimum national standards under RCRA section s 1008(a) and 4004(a). Second

, section 4004(a) does not require a demonstration of actual impacts, merely that these units present an unacceptable risk of harm. T hus, it is sufficient for EPA to establish a factual record demonstrating that the specific location restrictions in the final rule are necessary for CCR disposal units (landfills and surface impoundments), as a class, to ensure that there will be no

reaso nable probability of adverse effects on health or the environment. In this case, the factual record supports the need for all of the location standards for existing CCR surface impoundments imposed by this rule. For most location restrictions facilities need to either demonstrate that the surface impoundment meets the performance standard that serves as the alternative to the prohibition, retrofit the unit so that it can meet the performance standard, or close.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 38 

### Organization 1 

### : Duke Energy


### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.6 

### Comment Excerpt Te xt: Furthermore, it must be noted that most existing state environmental regulatory programs17

provide that all applicable state agencies (e.g., Department of Natural Resources or other state and local agencies with jurisdiction over specific siting restrict ions) be part of the siting and permitting process for new surface impoundments and landfills. EPA should consequently provide a mechanism for states to adopt these regulations to ensure all location restrictions are addressed before approvals are issued f or new facilities. Again, it is evident that any self

implementing rule would create an excessive burden by requiring compliance with duplicative and potentially conflicting requirements with no corresponding human health or environmental

benefit.

Respons e: EPA agrees that it would be preferable to establish a program for states to adopt

these finalized regulations to ensure that all location restrictions are addressed as part of a facility approval process

. Howev er, no provisions comparable to state implementation of federal requirements under section 4005(c) for MSWLFs appear in either section 4004(a) or section 4003, which governs the approval of state solid waste management plans under Part 256

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 4 9 

### Organization 1 

### : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)


### Commenter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The discussion of landfill locational restrictions on p . 35198 addresses the proposed Subtitle D rule locational restrictions for wetlands, fault areas, or seismic impact zones . We believe that States that have such restrictions in their rules also have provisions for exemptions or alternatives analyses.

Response: The Agency appreciates the commenter’s assertion that States with location restrictions in their regulations also have provisions for alternatives. This final rule impose s no requirements on States to adopt these regulations, to develop a permit program, or submit a program covering these units to EPA for approval, as subtitle D of RCRA does not provide EPA

such aut hority. Nevertheless, the Agency encourages States not only to adopt at least the federal minimum criteria into their regulations , but to go beyond these minimum requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06722

- 17 

### Organization 1 

### : Arkansas Electric Cooperative Corporation (AECC)


### Commenter 1 : Jonathan Oliver Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:18



### Comment Excerpt Text: EPA should not apply location r estrictions to existing surface impoundments or landfills.

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply location restrictions to existing surface impoundments or landfills. In the proposed rule preamble, EPA h as explained the rationale for applying today’s provisions to existing CCR surface impoundments, and the commenters have submitted nothing to rebut that rationale. Thus, EPA maintains its determination that application of the location standards to existing CCR surface impoundments is necessary to achieve the standard in section 4004(a). Absent the location restrictions being promulgated, the risk of impacts to human health and the environment from the rapid and catastrophic destruction of CCR surfa ce impoundments sited in these sensitive areas would exceed acceptable levels. In addition, the Agency is finalizing, as proposed, the unstable area location restriction for existing CCR landfills because the record clearly shows that failure of CCR unit s in these areas (e.g., due to instabilities in Karst terrains) have and in all likelihood would continue, in the absence of the restrictions in the final rule, to result in damage cases where constituents from CCR are released affecting both groundwater a nd

surface waters.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06838

- 20 

### Organization 1 

### : Minnesota Pollution Control Agency (MPCA)


### Commenter 1 : Lisa Mojsiej on behalf of Tim Scherkenbach Commenter Type: State Government

Classification: Substantive Comment Category : Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1 

### Comment Excerpt Text: MPCA does not anticipate many current CCRs landfills being affected by the proposed Subtitle D location restrictions. The proposed location requirements are similar to those applied prior to permitting landfills in Minnesota. If location requirements cannot be met, a variance is necessary. Adequate information must be provided to verify the site is protective of the

environment and human health. A similar vari ance process is necessary for all alternative landfill designs in Minnesota.

Response: EPA appreciates receiving this information on location requirement s and the variance process in Mi nnesota state landfill regulations. However, since this rule is self

- implementing it lacks the oversight provided by a permit program. Because of the lack of oversight controls

, the Agency has chosen not to include provisions for waivers in this final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07534

- 5 

### Organization 1 

### : Aquaterra Environmental Solutions, Inc.


### Commenter 1 : Scott Waltrip Commenter Type: Other Company

Classification: Substantive19

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.2 4.6.1 4.6.1.5 4.7 

### Comment Excerpt Text: Subsection 257.71(d) (1) through (15)

Please clarify how the location restrictions contained in §§257.60 through 64 would apply to retrofitted impoundments.

Response: Under this final rule retrofitted CCR surfa ce impoundments would be considered new units, since CCRs would be removed and a composite liner constructed. These units would be prohibited from locating in wetlands, fault areas, seismic impact zones, and unstable areas (including areas of karst terran e) unless the owner or operator makes a demonstration that the unit meets the requirements of a performance standard that serves as the alternative to the

location restriction. Mor e over, they would be prohibited from being constructed with a base that

is located less than five feet from t he top of the uppermost aquifer

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08220

- 15 

### Organization 1 

### : PowerSouth Energy Cooperative


### Commenter 1 : Dr. Keith Stephens Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA should not apply location restrictions to existing surface impoundments or landfills.

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply location restrictions to existing surface impoundments or landfills. In the proposed rule preamble, EPA has explained the rationale for applying today’s provisions to existing CCR surface impoundments, and the commenters have submi tted nothing to rebut that rationale. Thus, EPA maintains its determination that application of the location standards to existing CCR surface impoundments is necessary to achieve the standard in section 4004(a). Absent the location restrictions being pr omulgated, the risk of impacts to human health and the environment from the rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas would exceed acceptable levels. In addition, the Agency is finalizing, as proposed, the unstable area location restriction for existing CCR landfills because the record clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) have and in all likelihood would continue, in the absence of the rest rictions in the final rule, to result in damage cases where constituents from CCR are released affecting both groundwater and

surface waters.20



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 42 

### Organization 1 

### : Ohio Environmental Protection Agency


### Commenter 1 : Chris Korleski Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7 

### Comment Excerpt Text: In addition to the 5 feet of separation between the uppermost aquifer and the bottom of the CCR landfill recommended above, Ohio EPA recommends that CCR facilities be prohibited from being located in sand and gravel quarries, limestone quarries, sandstone quarries, karst areas, source water protections areas for a public well f ield, within 1000 feet of a private water supply and over unconsolidated aquifers capable of sustaining a yield greater than 100 gallons per minute. All of these locations are susceptible to ground water contamination and should not be used for the permane nt disposal of any waste material.

Response: The Agency appreciates this information on suggested location buffers from the State of Ohio. In setting minimum national standards in this rule under §257.60 EPA has chosen to

finalize location buffers for CCR disposal units located above the uppermost aquifer, and in fault areas. States may choose to implement more stringent requirements

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08841

- 28 

### Organization 1 

### : Deseret Generation and Transmission Co

- operative


### Commen ter 1 : Howard Vickers Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

EPA shouloh and today would've been d not apply location restrictions to existing surface impoundments or landfills.

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply location restrictions to existing surface impoundments or l andfills. In the proposed rule preamble, EPA has explained the rationale for applying today’s provisions to existing CCR surface impoundments, and the commenters have submitted nothing to rebut that rationale. Thus, EPA maintains its determination that a pplication of the location standards to existing CCR surface impoundments is necessary to achieve the standard in section 4004(a). Absent the location restrictions being promulgated, the risk of impacts to human health and the environment from the rapid a nd catastrophic destruction of CCR surface impoundments sited in these sensitive areas would exceed acceptable levels. In addition, the Agency is finalizing, as proposed, the unstable area location restriction for existing CCR landfills because the recor d21

clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) have and in all likelihood would continue, in the absence of the restrictions in the final rule, to result in damage cases where constituents from CCR a re released affecting both groundwater and

surface waters.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 63 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC)


### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
Location Criteria (40 C.F.R. § 257.40(a)) Pursuant to 257.40(a), CCR surface impoundments and landfills are subject to Section 257.3

- 1. However, because CCR units are more analogous to municipal solid waste landfills, the requirements of Section 258.11 should be applicable instead of those set forth in Section 257.3

- 1.

Response: EPA disagrees with the commenter’s assertion that CCR disposal units are analog ous to Municipal Solid Waste landfills, and for reasons outlined in the preambles of both the proposal and today’s final rule the Agency has chosen to develop regulations under Part 257 applicable to CCR surface impoundments and landfills.



### Comment Numbe r: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 51 

### Organization 1 

### : Virginia Department of Environmental Quality


### Commenter 1 : Jeffery A. Steers Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: · Additional information regarding the extent to which landfill capacity would be affected by applying the proposed subtitle D location restrictions to existing CCR landfills.

Requiring CCRs to be placed in industrial landfills would greatl y reduce the lifespan of permitted industrial landfills in Virginia. Virginia DEQ is unaware of the amount of CCRs that are generated within the state annually, mainly because of the successes of reuse and recycling programs that occur under provisions of beneficial use. Most recent estimates indicate that Virginia has available capacity at non

- captive industrial landfills for approximately 13 million22

tons of industrial waste. In reality industrial landfills handle many types of waste streams and the

remain ing lifespan of these landfills would be significantly reduced if CCRs are required to be disposed at these facilities. There are currently only two permitted non

- captive industrial landfills in Virginia and Virginia DEQ is unable to estimate if these two facilities would be capable of managing the additional waste material if CCRs were required to be placed in these landfills. There would likely be an increase in the number of captive landfills operating in Virginia, which would require an increase in the resources needed to oversee these landfills because the standards CCR landfills would be required to meet under this proposal are similar to existing Municipal Solid Waste and Industrial landfill standards.

Response: As stated in the preamble, this final rule does not affect existing beneficial use applications. So the commenter’s concern regarding significant reduction in available disposal capacity due to disposal of additional CCRs in landfills should be moot. Moreover, e xisting

CCR landfills are not required to comply with all location restrictions, just those for floodplains

and unstable areas. EPA disagrees with the commenter’s assert ion that the application of these

location restrictions to existing landfills will result in reduc ed disposal capaci ty. The Agency believes that owners and operators will be able to demonstrate compliance with the restrictions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 50 

### Organization 1 

### : Arizona Department of Environmental Quality (ADEQ)


### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7 

### Comment Excerpt Text: 6. Pg. 35242, Section 257.62: Suggest changing language so that it is clear tha t the demonstration must be to the satisfaction of the State. This is applicable throughout the

document.

Response: As explained in the preamble, the final regulations EPA is promulgating impose

minimum federal criteria with which CCR landfills and CCR su rface impoundments must comply. The sections of RCRA that are currently applicable to CCR

– sections 1008(a), 4004(a), and 4005(a)

-- only authorize the Agency to establish minimum national criteria that apply to

“facilities.” The restriction that the criteria apply only to “facilities” means that EPA cannot establish any requirements on states or state programs, either directly or indirectly. This also means that EPA cannot require a fa cility to obtain state approval. These re gulations impose no requirements on States to adopt these regulations, to develop a permit program, or submit a program covering these units to EPA for approval, as subtitle D of RCRA does not provide EPA such authority.23



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 51 

### Organization 1 

### : Arizona Department of Environmental Quality (ADEQ)


### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7 

### Comment Excerpt Text: 7. Pg. 35242, Section 257.64(b)(1): Add ground subsidence related to mining or fluid withdrawal, and earth fissuring. Or can also be added to Poor Foundation Conditions.

Response: The definition of unstable area in §257.53 of this final rule as ‘ a location that is susceptible to natural or human

- induced events or forces .....’ encompasses the types of ground subsidence and fissuring mentioned by the commenter. All are capable of impairing the CCR

unit. While EPA en courages States to adopt at least the federal minimum criteria into their regulations, States are also free to elaborate on the types of onsite local conditions covered under the definition of unstable areas that may result in differential settling

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 52 

### Organization 1 

### : Arizona Department of Environmental Quality (ADEQ)


### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context As signed/Due:

Other Sections: 4.7 

### Comment Excerpt Text: 8. Pg. 35242, Section 257.64(b)(2): Suggest adding embankments, spillways, outlets

Response: Section 257.64(b) defines the minimum factors the owner or operator must consider when determining whether an area is unstable. Section 257.64 ( b ) (3) , and not (b)(2), specifies

consideration of o n

- site or local human

- made features

. Although embankments, spillways, and

outlets can fit the definition of human

- made features, t he commenter includes no info rmation regard ing why adding these features would necessarily make an area unstable. The Agency is, therefore going with the definition of section 257.64(b) as proposed.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09349

- 6 

### Organization 1 

### : Santee Cooper


### Commenter 1 : Jay Hudson Commenter Type: Electric Utility Company

Classification: Substantive24

Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Even under the Subtitle D and D prime proposal, Santee Cooper has serious con cerns regarding EPA's apparent policy decision to force the closure of existing CCR surface impoundments and has equal concerns about location restrictions for new landfills and impoundments.

Response: EPA disagrees with the commenter’s assertion that the Agency is trying to force closure of CCR surface impoundments. However, a s discussed in the preamble of both the proposal and this final rule , the factual record supports the need for all of the location standards for existing CCR surface impoundments and new CCR disposal units (including landfills and impoundments) imposed by this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09427

- 15 

### Organization 1 

### : San Miguel Electric Cooperative, Inc. (San Miguel)


### Commenter 1 : Joseph G. Eutizi Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA should not apply location restrictions to existing surface impoundments or landfills.

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply location restrictions to existing surface impoundments or landfills. In the proposed rule preamble, EPA has explained the rationale for applying today’s provisions to existing C CR surface impoundments, and the commenters have submitted nothing to rebut that rationale. Thus, EPA maintains its determination that application of the location standards to existing CCR surface impoundments is necessary to achieve the standard in secti on 4004(a). Absent the location restrictions being promulgated, the risk of impacts to human health and the environment from the rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas would exceed acceptable levels. In addition, the Agency is finalizing, as proposed, the unstable area location restriction for existing CCR landfills because the record clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains)

have and in all likelihood would continue, in the absence of the restrictions in the final rule, to result in damage cases where constituents from CCR are released affecting both groundwater and

surface waters.25



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09951

- 23 

### Organizati on 1 

### : Full Circle Solutions, Incorporated


### Commenter 1 : Robert J. Waldrop Commenter Type: Beneficial User

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The proposed location requirements do not reflect a complete prohibition on siting facilities in areas of concern, but provide a performance standard that facilities must meet in order to site a unit in such a location. EPA has requested information on the extent to which facilities could

comp ly with the proposed performance standards, and the necessary costs that would be incurred to retrofit CCR disposal units to meet these standards is solicited.

Performance standards are always preferable to rigid dictated regulation. They allow for new an d innovative designs which may be more cost effective and more protective of the environment without the unnecessary burden of changing regulations or a going through a variance process.

Response: EPA is finalizing the requirements of this rule to establi sh minimum national standards for the management of CCR. The requirements are d esigned to be self

- implementing, in part, to minimize the inv olvement of regulatory entities unless states choose to be involved.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09951

- 28 

### Organization 1 

### : Full Circle Solutions, Incorporated


### Commenter 1 : Robert J. Waldrop Commenter Type: Beneficial User

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.3 4.7 

### Comment Excerpt Text:
§ 257.60 Placement above the natural water table.

The definition of natural water table does not adequately identify the highest point of the water table elevation. As defined, measurement of the water table could occur in dry months where the water table is low. If the design is based on this low elevation, ground water may rise into a CCP fill area. We have found that the use of the seasonal high ground water table to be more accurate and protective of the ground water. The de finition below comes from the Soil Conservation Service, U.S. Department of Agriculture. We suggest the proposed language be changed as

follows:

§ 257.60 Placement above the natural water table.

(a) New CCR landfills and new CCR surface impoundments and lateral expansions must be26

constructed with a base that is located a minimum of two feet above the seasonal high ground

water table.

(b) For purposes of this section, seasonal high ground water table means the highest level of a saturated zone (the appare nt or perched water table) over a continuous period of more than two weeks in most years, but not a permanent water table.

Response: As explained in the preamble, this final rule has finalized a clarified definition of the

natural water table. There are many factors, including seasonal variations that influence the location of the groundwater table making it difficult to determine the “natural” level. Moreover,

local site

- specific hydrogeologic conditions within the aquifer may cause the natural groundwa ter table to exceed five feet and vary as much as ten feet. To take into consideration the pos sibility of such large seasonal fluctuati ons, EPA has changed the definition of “uppermost aquifer” to specify that the measurement of the upper limit of the aqu ifer must be made at a point nearest to the natural ground surface to which the aquifer rises during the wet season. The finalized definition of “uppermost aquifer” will encompass large seasonal variations, and is a more appropriate parameter than “season al high ground water table” because it is more clearly

defined.

Section 4.4.4.1

- Differences in location restrictions for existing and new CCR LFs and SIs, and for lateral expansions (which fall within definition of new units) Total Number of Submission s: 25 Total Number of Comments: 33



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05439

- 5 

### Organization 1 

### : Commenter 1 : Robert D. Edstrom, Ph.D. Commenter Type: Private Citizen

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.1 10.5.3.3 

### Comment Excerpt Text: The designation of minimum distances of CCRs to surface water and to seasonal ground water, whether in confined storage or placement for beneficial use, should occur for all cases.

Response: The Agency disagrees with the commenter’s assertion there should be location restrictions for placement of CCRs for beneficial uses. For reasons stated in the preamble, this final rule does not affect existing beneficial use applications. Nor has EPA final ized any placement restrictions for CCRs ‘in confined storage’, although CCR piles are subject to the

same location restrictions as CCR landfills.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06198

- 5 

### Organization 1 

### : Ameren Corporation27



### Commenter 1 : Paul R. Pike

Com menter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.2 

### Comment Excerpt Text: IV. Existing Surface Impoundments Or Landfills Location Restrictions

The proposed Subtitle D standards would impose various location restrictions to new and existing CCR surface impoundments and landfills. In particular, new and existing CCR surface impoundments and landfills could not be located in floodplains or unstable areas except if they meet a design or operating standard sufficient that the risk associated with the location restriction

has been addressed. Id. at 35242

- 43 (proposed 40 C.F.R. § 257.64). In addition, new surface impoundments and new landfills could not be located in wetlands, fault areas, or seismic impact

zones and must be located at least two feet above the natural water table. Id. at 35241

- 42 (proposed 40 C.F.R. §§ 257.60

- 257.63.) Of significant concern, EPA states in the preamble to the proposal th at it intends to subject existing surface impoundments to al/ of these new location restrictions due to the risks posed by these units. Id. at 35198

- 99. In the corresponding proposed regulatory text, however, existing surface impoundments are only subject to the floodplains and unstable area location restrictions. See id. at 35243 (proposed 40 C.F.R. § 257.65).

We assume for purposes of these comments that EPA intends to subject existing CCR surface impoundments to the additional location restrictions con sistent with the proposal's preamble and that the Agency's proposed regulatory text is inaccurate. Presumably, EPA copied the regulatory text for the regulations applicable to MSWLFs as codified at 40 C.F.R. Part 258. Although EPA

intends to base the Subti tle D CCR disposal unit regulations in large part on the MSWLF regulations, here, the Agency clearly departs from those regulations, requiring all existing surface impoundments to comply with the full range of location restrictions, a condition that is

nor mally only applied to new units. This is a departure from the MSWLFs standards; EPA has not made a compelling justification for treating CCR impoundments more harshly than MSWLF

units.

Subjecting existing surface impoundments to these location restrictio ns must be backed by an evaluation of the risks posed by facilities in each of these types of locations. Ameren is not aware of structural stability issues directly caused by the placement of surface impoundments in wetlands, fault areas, or seismic impact areas of less than two feet above the natural water table. The Agency does not assess the risks associated with the placement of existing impoundments in these areas. EPA simply asserts that the risks associated wtth impoundments are greater than

those as sociated with landfills and cites to the TVA spill as an example of the environmental consequences of a "catastrophic collapse" of a CCR impoundment. Id. at 35199. The Agency must conduct a detailed analysis of CCR surface impoundments located in these res tricted locations and demonstrate, based on this analysis, that there are, in fact, increased risks from these Impoundments to justify such a significant departure from how the Agency addressed and regulated MSWLFs.28

EPA does not propose subjecting existi ng CCR landfills to the full range of location restrictions because EPA reasons that such units are structurally less vulnerable than impoundments. Also, there would be significant disposal capacity shortfalls if existing CCR landfills located in these

res tricted areas

- i.e., wetlands, fault areas or seismic impact areas

- had to close. 75 Fed. Reg. at 35198. Ameren agrees with EPA that existing CCR landfills should not be subject to these additional location restrictions and shares EPA's concern that subj ecting them to such controls would cause a significant decrease in disposal capacity.

Ameren shares EPA's concern that many CCR landfills are located in areas that would be subject

to one or more of the above

- referenced location restrictions and, while s ome landfills may be able to retrofit or already are in compliance with the performance standard tailored to the location restriction, some landfills could be forced to close due to the challenges of attempting to

retrofit to meet the location

- based perfor mance standards. Aside from the fact that there is no factual record supporting the application of these additional restrictions to existing landfills, closure of these units would create disposal Shortfalls. Among other things, unit closures would greatly complicate operations at many utilities that would need to find additional disposal capacity, requiring utilities to obtain procure new real estate for siting a new landfill (which may be a significant distance from a power plant), obtain a new disposal p ermit for the landfill (which can take an extended period of time), and transport significant volumes of CCRs great distances to the newly

- permitted facilities. There is simply no environmental basis for causing this disruption to utility CCR disposal prac tices by subjecting existing CCR landfills to the full range

of location restrictions.

Response: As stated in the preamble to this rule, and repeated here, the Agency acknowledges

that an error was made in drafting the proposed subtitle D regulatory langua ge for the locati on restrictions . T hese location restrictions do apply to existing CCR surface impoundments, which means that facilities need to either demonstrate that the surface impoundment meets the performance standard that serves as the alternative t o the prohibition, retrofit the unit so that it can meet the performance standard, or close.

E PA , disagrees with the commenter's assertion that in order to justify national standards applicable to existing surface impoundments that the location restrictions must be backed by an evaluation of the risks posed by facilities in each of these types of locations. The commenter has

misstated the s tandard applicable to this rule. Congress specifically directed EPA to proceed by rulemaking to establish minimum national standards under RCRA sections 1008(a) and 4004(a).

S ection 4004(a) does not require a demonstration of actual impacts, merely that these units present an unacceptable risk of harm. Thus, it is suff icient for EPA to establish a factual record demonstrating that the specific location restrictions in the final rule are necessary for CCR disposal units (landfills and surface impoundments), as a class, to ensure that there will be no reasonable probabili ty of adverse effects on health or the environment. And in this case, as discussed in the preamble, the factual record supports the need for all of the location standards imposed by today's rule.

The Agency agrees with the commenter’s characterization of EPA’s conclusion that it would be inappropriate to apply all location standards to existing CCR landfills. However, EPA wishes to emphasize that existing CCR landfills are subject to the finalized location restriction applicable

to units in unstable areas

. EPA disagrees with the commenter’s assertion that the application of29

just one location restriction to existing landfills will result in reduced dis posal capacity. T he Agency believes that owners and operators will be able to demonstrate compliance with this

restric tion

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 27 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government

Classification: Substantiv e Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Existing landfills designed and operated as stipulated by RCRA Subtitle D regulations should be allowed to continue accepting CCR.

Response: EPA agrees that existing landfills subject to RCRA Subtitle D regulation under Part 258 should be allowed to continue accepting CCRs. As stated in the preamble of this rule, the Agency sees no need to impose duplicative requirements for MSW landfills that receive CCR. Consequently, the final rule excludes MSW landfills from the requirements of the rule by adding them in a list of excluded facilities or activities under § 257.50.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 29 

### Organization 1 

### : Tennessee Dep artment of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1 4.4.6 4.4.7.1 4.4.8 4.4.9.1 

### Comment Excerpt Text: New landfills and expansion of existing landfills to be used for the disposal of CCR should be required to meet RCRA Subtitle D municipal solid waste and design criteria including geologic stability assessment, engineering design crit eria, operational standards, groundwater monitoring, quarterly inspections, closure (including cap), post

- closure monitoring and maintenance, financial assurance and notification of CCR disposal on the property deed.

Response: In developing the subtitle D option for the proposal, EPA considered a number of existing programs as relevant models. EPA drew most heavily on the existing 40 CFR Part 258 program applicable to municipal solid waste landfills. While this program does not address CCR disposal in surface impoundments, it provided EPA with a general regulatory framework that addressed all aspects of disposal in certain land

- based units. Given the Agency’s expansive history and experience with these requirements, EPA believed that the part 258 crite ria with

certain modifications for other land

- based disposal units (i.e., surface impoundments) represented a reasonable balance between ensuring the protection of human health and the30

environment from the risk of CCR disposal and the absence of any regula tory oversight. (See 75

FR 35192

- 35195.) The finalized criteria include location standards, engineering design criteria, groundwater monitoring, and closure criteria that are explained in the preamble to this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 31 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1 4.4.5.2 4.4.7.1 4.4.8.2 4.4.9.1 

### Comment Excerpt Text: New CCR surface impoundments should be permitted following the EPA Subtitle D criteria for solid waste landfills. The regulations should include:

- Public Notice of intent to construct.

- Demonstration of suitable geologic conditions for construction.

- An engineering design which includes a geologic buffer, synthetic liner, leachate collection system, groundwater monitoring system with a minimum of four wells, buffer zones,

cons truction with a dam safety factor of 1.5, estimated disposal capacity of the surface impoundment, seismic analysis and seismic safety factor of 1.5, closure plan, post

- closure monitoring and maintenance plan and financial assurance in an amount sufficient to complete environmental investigation and cleanup should the surface impoundment fail or have releases to groundwater and/or surface water.

- The initial plans should indicate whether the surface impoundment will be used for CCR

treatment or for waste tre atment and CCR disposal.

Response: EPA’s regulatory approach for CCR landfills and CCR surface impoundments is discussed extensively Unit V, and throughout the preamble to this final rule. The Agency has no authority to require a permit program. However, Tennessee can certainly impose such a requirement under state law (and EPA would encourage them to do so). Regarding the specific regulatory elements listed by the commenter, the requirements for new surface impoundments

finalized in this final rule incl udes some but not others (no leachate collection system).



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06308

- 11 

### Organization 1 

### : NRG Energy Inc.


### Commenter 1 : Verne Shortell Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: B. EPA Should Not Apply Location Restrictions to Existing Surface Impoundments or Landfills31

The proposed Subtitle D standards would impose various location restrictions to new and

existi ng CCR landfills and surface impoundments. New and existing CCR surface impoundments and landfills could not be located in floodplains or unstable areas. In addition, new CCR surface impoundments and landfills could not be located in wetlands, fault areas, or seismic impact zones and must be located at least two feet above the natural water table. The proposed Subtitle D regulatory text indicates that, for existing surface impoundments, these location restrictions apply only to flood plains and unstable are as. However, the preamble to the proposal indicated that EPA intends to subject all location restrictions to existing surface impoundments. NRG supports the more extensive comments on this issue from USWAG.

In addition, NRG recommends exemptions for exis ting facilities, specifically that federal criteria be implemented as guidelines and that location criteria be defined only by state agencies and that existing facilities and lands permitted for expansion receive these exemptions.

Response: I n response to the discrepancies between the preamble language and the regulatory
text, EPA admits that indeed an error was made in drafting the proposed regulatory language for the location restrictions as it applies to existing CCR surface impoundments . T he regulatory language should have included “all surface impoundments” as opposed to only “new surface impoundments

. ” The Agency disagrees with the commenter’s assertions that federal criteria be implemented as guidelines, that location criteria be defined only by St ate agencies, and that existing facilities and lands permitted for expansion receive these exemptions. The Agency considers guidelines to be insufficiently protective. As stated in the preamble to this rule, the record is clear that current management of these wastes can present, and in many cases has presented, significant risks to human health and the environment. T he current level of risk clearly warrants the issuance of Federal standards to ensure consist ent management practices and a national minimum level of safety. Although EPA has not made a final determination on the adequacy of state regulations, current information suggests for the Agency t o allow location criteria to be defined only by state agenc ies would ensure neither consistent management nor a minimum level of safety. Moreover, these regulations exist independent of any applicable state

c riteria

. Therefore, f

acilities permitted by the state for expansion must comply with both federal

and sta te criteria simultaneously.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 113 

### Organization 1 

### : Earthjustice et. al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.1 

### Comment Excerpt Text: CCR landfills and surface impoundments should be banned in wetlands, fault areas, seismic impact zones and unstable areas. Consideration should also be given to placing restrictions on

landfills a nd surface impoundments in sensitive aquifer recharge zones, karst environments, and32

floodplains. Many of the CCR landfills and surface impoundments, which are already located in floodplains, will be breached in the future if the rivers change course and c ut through areas where wastes have been disposed. New landfills constructed under the promulgated rules should be prohibited from siting in these areas.

Response: Although EPA shares the commenter’s concern regarding the siting of CCR landfills

and CCR surface impoundments in sensitive areas, the Agency disagrees with the assertion that CCR disposal units should be banned from locating in wetlands fault areas, seismic impact zones and unstable areas. In this rule under §257.60

- .64 EPA has chosen to proh ibit locating a new CCR disposal unit in wetlands, fault areas, seismic impact zones, and unstable areas (including areas of karst terrane) unless the owner or operator makes a demonstration that the unit meets the requirements of a performance standard th at serves as the alternative to the location restriction. EPA did not propose to impose all location requirements on existing CCR landfills because of the concern that potential disposal capacity shortfalls could result in certain regions of the U.S. if

ex isting CCR landfills in these locations were required to close. As stated in this rule, the Agency concluded that the potential disposal capacity shortfalls would pose more environmental and public health concerns, based on the potential for significant di sruption of solid waste

management state

- wide from the closure of these units, than the potential risks from allowing existing CCR landfills to remain in these locations, given that these units would be subject to the design and operating requirements of the rule. Units located in floodplains are already subject to provisions of §257.3

- 1(b)(3), which prohibits disposal practices that would result in the carrying away of solid waste by waters of a base flood.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 96 

### Organization 1 

### : Earthjustice et. al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: When Subtitle C regul ations became effective for hazardous waste landfills, owners and operators were allowed to continue using existing landfills that did not meet the promulgated liner requirements. These requirements applied only to lateral expansion of the existing landfil ls

or the construction of new cells.

For several reasons, which are not applicable to CCR landfills and surface impoundments, existing hazardous waste landfills, which did not meet the new requirements, were quickly closed. First, most of the hazardous w aste landfill cells were small compared to the size required for CCR wastes. Thus, they were closed out rather quickly and newly permitted cells were built to replace them.

Secondly, hazardous waste landfills are not owned by the industries they serve. M any of their customers had significant liabilities under CERCLA for past disposal, even at sites that had state permits. Thus, the hazardous waste disposal company sale staff needed to assure their customers33

that their wastes would be disposed of in landfi lls, which fully complied with the new regulations. Hazardous waste landfill owners compete with each other for business and such assurance is a major component of their sales approach.

CCR landfills are typically much larger than the hazardous waste cel ls in use in the early 1980’s and thus, some of the grandfathered CCR landfills, without liners and leachate collection systems, etc., could be used without lateral expansion for many more years. Secondly, CCR landfills and surface impoundments are charact eristically owned and operated by the owner of the coal fired power plant that produces the CCR wastes. Therefore, there is no mechanism by which competition is available to foster compliance with the new regulatory requirements.

Thus, grandfathering of existing CCR landfills and surface impoundments could allow the same type of pollution to occur as has already been documented by CCR disposal case studies (USEPA, 2007; Environmental Integrity Project and Earthjustice, 2010; Environmental Integrity Projec t, Earthjustice, and Sierra Club, 2010).

Response: In this final rule existing surface impoundments are subject to all location

restrictions. This means that facilities need to either demonstrate that the surface impoundment meets the performance standard that serves as the alternative to the prohibition, retrofit the unit so that it can meet the performance standard, or close. EPA did not propose to impose all location requirements on existing CCR landfills because of the concern that potential d isposal capacity shortfalls could result in certain regions of the U.S. if existing CCR landfills in these locations were required to close

. T he Agency concluded that the potential disposal capacity shortfalls would pose more environmental and public heal th concerns, based on the potential for significant disruption of solid waste management state

- wide from the closure of these units, than the potential risks of further pollution from allowing existing CCR landfills to remain in these locations, given that these units would be subject to the design and operating requirements of the

rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 33 

### Organization 1 

### : Duke Energy


### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA states in the preamble of the Proposed Rule that it intends to subject existing surface impoundments to all of the new location restrictions due to the risks posed b y these units. Id. at

35198

- 99. In the corresponding proposed regulatory text, however, existing surface impoundments are only subject to the location restrictions related to floodplains and unstable areas. Duke Energy disagrees with EPA to the extent that it intends to subject existing CCR surface impoundments to all of the additional location restrictions found in 40 C.F.R. § 257, consistent with the preamble.34

Duke Energy agrees with EPA that the location restrictions should apply for all new surface imp oundments and landfills, and that compliance with these restrictions should be documented. However, Duke Energy disagrees with EPA’s proposal to subject existing CCR surface impoundments and landfills to the proposed location restrictions. EPA should inste ad provide a mechanism for a facility to demonstrate that any environmental or stability concern associated with a specific location restriction has been or can be adequately mitigated.

Response: In response to the discrepancies between the preamble langua ge and the regulatory text, EPA admits that indeed an error was made in drafting the proposed regulatory language for the location restrictions as it applies to existing CCR surface impoundments. The regulatory language should have included “all surface im poundments” as opposed to only “new surface impoundments.” The data supporting the Agency’s decision to impose all location standards on existing CCR surface impoundments is discussed extensively in the preamble of this rule

. In this rule, f or most location restrictions f acilities are allowed to either demonstrate that the surface impoundment meets the performance standard that serves as the alternative to the prohibition, retrofit the unit so that it can meet the performance standard, or close

. E xi stin g CCR l andfills are subject to location restriction for unstable areas

. For existing CCR landfills and CCR surface impoundments the location standards in subpart A of 40 CFR 257 for floodplains, endangered species, and surface waters continue to apply. As with surface impoundments, facilities with

CCR landfills in unstable areas are allowed to either demonstrate that the unit meets the performance standard that serves as the alternative to the prohibition, retrofit the unit so that it can meet the performance standard, or close.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 46 

### Organization 1 

### : Duke Energy


### Commenter 1 : Mike Stroben

Comme nter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.3 4.7 

### Comment Excerpt Text: (iv) The Definition of Existing CCR Landfills

– 40 C.F.R. § 257.40(2)(b).

The proposed definition of an “Existing CCR Landfill” should be modified to include lateral expansions of operating units where such expansion is within the site footprint of an area already approved and permitted by the state for the landfill. While the c urrently proposed definition includes undeveloped areas within the footprint of an approved permitted site, it also requires that construction actually commence at the site or that some type of binding contractual obligation be present for these areas to b e considered an existing CCR landfill. However, regardless of whether construction has commenced or there is a contractual obligation present for expansion, such undeveloped areas pose no additional risk since they are already approved and permitted. Moreo ver, there is no health

- based or environmental

- based reason to support such a distinction. Under both scenarios, the undeveloped portion of the approved permitted site must35

undergo environmental and related technical review by the permitting authorities an d be approved for the location of a CCR landfill. To exclude a location that has otherwise already been permitted for a CCR landfill from the definition of an “existing” landfill merely because there is not a binding contractual commitment to begin constru ction would unfairly subject these areas to the design and operating standards for new CCR landfills, especially where identical locations are considered existing CCR landfills but are subject to different operating standards based merely on the existence of a contract to commence construction. Such a distinction is arbitrary and capricious and provides no practical benefit.

Response: As stated in the preamble and repeated here, EPA agrees with commenters that with regard to the “commence construction” prov ision of the definition, there should be no distinction between undeveloped areas where federal, state and local approvals or permits necessary to begin physical construction have been obtained, and undeveloped areas that have obtained the same approvals b ut also have a binding contractual agreement in place for the construction of the unit. Given the proposed language in the definition, “the owner or operator has entered into contractual obligations

– which cannot be cancelled or modified without substanti al loss

– for physical construction of the CCR landfill to be completed within a reasonable time,” the Agency has concluded, that absent some type of guidance that objectively discusses how “substantial loss” could be calculated by the owner or operator, t he purpose and/or effect of this requirement in meeting the objectives of this rule remain unclear. Consequently, the Agency has decided to remove this provision from the definition of “existing CCR landfill” but is retaining what the Agency considers are the two most important elements of the definition. First, that the owner or operator has obtained the federal, state, and local approvals or permits necessary to begin physical construction; and second, that a continuous on

- site, physical construction pro gram has begun (i.e., groundbreaking has occurred). Therefore, EPA is finalizing the definition of “existing CCR landfill” as follows.

Existing CCR landfill means a CCR landfill that receives CCR both before and after [INSERT

DATE 180 DAYS AFTER THE DATE O F PUBLICATION IN THE FEDERAL REGISTER], or for which construction commenced prior to [INSERT DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER] and receives CCR on or after [INSERT

DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERA L REGISTER]. A CCR landfill has commenced construction if the owner or operator has obtained the federal, state, and local approvals or permits necessary to begin physical construction and a continuous

on

- site, physical construction program had begun prior to [INSERT DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER].



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 50 

### Organization 1 

### : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)


### Commen ter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:36



### Comment Excerpt Text: We believe that the current population of CCR landfills in Wisconsin does comply with these locational criteria. We suggest that these locational criteria should be maintained, subject to review by State agencies and approval, approval with conditions, or alternative locations or designs, as need be. We also see no reason not to apply these locational criteria to surface impoundments.

Response: In this final rule existing CCR surface impoundments are subject to all location restrictions, whereas existing CCR landfills are subject only to location restrictions for unstable areas. For all existing CCR landfills and CCR surface impoundments location standards in subpart A of 40 CFR 257 for floodplains, endangered species, and surface waters continue to apply

. The sections of RCRA that are currently applicable to CCR

– sections 1008(a), 4004(a), and 4005(a)

-- only authorize the Agency to establish minimum national criteria that apply to “facilities.” The restriction that the criteria apply only to “facilities ” means that EPA cannot establish any requirements on states or state programs, either directly or indirectly. This also means that EPA cannot require a facility to obtain state approval. These regulations impose no requirements on States to adopt these r egulations, to develop a permit program, or submit a program covering these units to EPA for approval, as subtitle D of RCRA does not provide EPA such authority.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 34 

### Organization 1 

### : Dynegy Inc


### Commenter 1 : Ben C. Trammell Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Location Restrictions Should Not Apply to Existing Surface Impoundments

Dynegy opposes EP A's proposal to apply the new location restrictions

-- water table, wetlands, fault areas, seismic impact zones, and unstable areas

-- to existing surface impoundments. 75 Fed. Reg. at 35198

- 99. As explained in section XII.B of USWAG's comments on the Prop osed CCR Rule, EPA has not justified imposing these location restrictions to existing surface impoundments, and the proposed extension of location restrictions for new municipal solid waste landfills to existing CCR surface impoundments is unsupported by t he rulemaking record. Moreover, application of the location restrictions to existing surface impoundments will likely require the closure of many existing surface impoundments. EPA's actions to alleviate the resulting disposal capacity concerns are not suf ficient.

Response: In the proposed rule preamble EPA has explained the rationale for applying today’s provisions to existing CCR surface impoundments, and the commenter has submitted nothing to37

rebut that rationale. Thus, EPA maintains its determination that application of the location standards to existing CCR surface impoundments is necessary to achieve the standard in section 4004(a). In addi tion, location standards in subpart A of 40 CFR 257 for floodplains, endangered species, and surface waters con tinue to apply for all CCR disposal units

. Absent the location restrictions being promulgated, the risk of impacts to human health and the environment from the rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas

w ould exceed acceptable levels

. I n the absence of the restrictions in the final rule, failure of CCR units in these areas have, and in all likelihood would continue to result in damage cases where constituents from CCR are released affecting both groundwat er and surface waters.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06517

- 3 

### Organization 1 

### : Commenter 1 : Anonymous Commenter Type: Anonymous

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

40 CFR 257.60 through 257.64 Location Restrictions

We recommend that EPA include a specific site restriction regarding placement of CCRs in a

100

- year floodplain, despite the fact that it is already covered by current paragraph 257.3

- 1. This

would be a simil ar approach to the Subtitle D rules for MSWLFs.

Response: The commenter has not supplied a rationale explaining why the already applicable general environmental performance standards of §257.3

- 1 are insufficiently protective. As stated in the proposal fo r this rule, b ecause owners and operators of existing landfills already should be

i n compliance with this criterion, applying this location restriction will have no impact to the existing disposal capacity, while continuing to provide protection of human health and the

environment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06517

- 9 

### Organization 1 

### : Commenter 1 : Anonymous Commenter Type: Anonymous

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: This also raises an interesting issue with regard to the location restrictions contained in §§257.60 through 64. The location restriction regarding unstable areas (§257.64) would clearly apply whether the retrofitted impoundment would be considered new or existing. However, it is not38

clear whether any of the others would apply to retrofitted impoundments.

Please revise either §257.71 or subsections §§257.60 through 63 to include language specifying the applicability of the location restrictions to retrofit ted impoundments. Special consideration should be given to whether or not the owner of an existing surface impoundment would be allowed to retrofit the impoundment and continue operating if the base of the existing impoundment is less than two feet above t he natural water table.

Response: In this final rule EPA considers retrofitted CCR surface impoundments to be new units and, therefore, subject to all location restrictions. Moreover, the Agency has finalized the

location restriction for the base of an e xisting surface impoundment at ‘.... no less than 1.52 meters ( five feet ) above the upper limit of the uppermost aquifer. ’ This restriction p rohibits construction or operation of any CCR surface impoundment, including a retrofitted impoundment, with a base t hat is less than five feet above the upper limit of the uppermost aquifer

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06827

- 11 

### Organization 1 

### : Oklahoma Gas and Electric Company (OG&E)


### Commenter 1 : Kenneth E. Raymond Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: D. Comprehensive Location Restrictions for CCR Surface Impoundments are Unwarranted The Subtitle D option imposes various location restrictio ns to new and existing CCR surface impoundments. Specifically, new and existing CCR surface impoundments could not be located in floodplains (a requirement that is already in effect) or in unstable areas. Additionally, new surface impoundments could not be located in wetlands, fault areas or seismic impact zones and

must be located at least two feet above the natural water table. However, the Agency states in the preamble to the proposed rule that it intends to subject existing surface impoundments to all o f these new location restrictions due to t he risks that they pose. In th e corresponding proposed regulatory text, however, existing surface impoundments are only subject to the floodplain and unstable area loca tion restrictions.

OG&E assumes for purposes o f these comments that the Agency intends to subject existing CCR surface impoundments to all of the location restrictions as stated in the preamble and not that stated in the regulatory text. If this is the case, the Agency has radically departed from the location restriction provisions of the existing municipal solid waste landfill rules on which the Subtitle D option is based without any justification for regulating surface impoundments more stringently than those landfills. Subjecting existing surface im poundments to these additional location restrictions must be backed by an evaluation of the risks posed by each impoundment based on its location. In that regard, the Agency should either limit the location restrictions to flood plains and unstable areas o r conduct a detailed analysis of CCR surface impoundments located in these restricted locations and demonstrate, based on this analysis that there are, in fact,39

increased risks from these impoundments to justify such a significant departure from how the Ag ency addressed municipal solid waste landfills

Response: The commenter misstates the existing restrictions under §257.3

- 1 for land disposal units located in floodplains , which are already applicable to CCR surface impoundments. For land disposal units located in floodplains, which would include all CCR landfills and surface impoundments, t he pro visions of §257.3

- 1(b)(3) prohibit disposal practices that would result in the carrying away of solid waste by waters of a base flood. This is not an outright location ban. In today’s final rule, new and existing CCR surface impoundments cannot be located in wetlands, seismi c impact zones, fault areas, or unstable areas unless the owner or operator makes

a demonstration that the unit me ets the requirements of a performance standard that serves as the

alternati ve to the location restriction . In addition, the location standards in subpart A of 40 CFR 257 for floodplains, endangered species, and surface waters continue to apply

.

In respo nse to the discrepancies between the preamble language and the regulatory text, EPA admits that indeed an error was made in drafting the proposed regulatory language for the location restrictions as it applies to existing CCR surface impoundments. The regu latory language should have included “all surface impoundments” as opposed to only “new surface impoundments.” The data supporting the Agency’s decision to impose all location standards on existing CCR surface impoundments is discussed extensively in the preamble of this rule.

EPA disagrees with the commenter's assertion that in order to apply national minimum standards to existing CCR surface impoundments, specific risks must first be demonstrated at each location based upon an evalua tion from each individual unit. First, it is well established that an agency may regulate a class of similarly situated [entities] through rulemaking, rather than on the basis of an individualized assessment of every entity that will be subject to the rule. And indeed, Congress specifically directed EPA to proceed by rulemaking to establish minimum national standards under RCRA sections 1008(a) and 4004(a). Second, section 4004(a) does not require a demonstration of actual impacts, merely that these units present an un acceptable risk of harm. Thus, it is sufficient for EPA to establish a factual record demonstrating that the specific location restrictions in the final rule are necessary for CCR disposal units (landfills and surface impoundments), as a class, to ensure that there will be no reasonable probability of adverse effects on health or the environment. In this case, the factual record supports the need for all of the location standards for existing CCR surface impoundments imposed by this rule.



### Comment Num ber: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 15 

### Organization 1 

### : Dominion Resources Services, Inc.


### Commenter 1 : Lisa J. Keck on behalf of Pamela Faggert Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context A ssigned/Due:



### Comment Excerpt Text: EPA should not apply location restrictions to existing CCR surface impoundments.40

EPA should not apply the location restrictions that arc proposed for new CCR surface impoundments to existing CCR surface impoundments. As previously stated, Dominion supports the D Prime option, which would allow existing CCR surface impoundments to continue operating for the remainder of their useful life. These impoundments should be allowed to continue to operate without being subjecte d to the full range of location restrictions included in the proposed rule. However, in the preamble to the proposed rule, EPA states that it intends to subject existing CCR surface impoundments to all of the location restrictions that it intends to apply to new surface impoundments. 75 Fed. Reg. at 35198

- 99. This would mean that existing surface impoundments could not be located in floodplains, unstable areas, wetlands, fault areas, or seismic impact zones, and the impoundments must be located at least two feet above the natural water table. Contradictory to the preamble language, the corresponding proposed Subtitle D regulatory text states that existing C CR surface impoundments arc only subject to the floodplain and unstable area location restrictions. Sec Id. at 35243 (proposed 40 C.F.R. § 257.65).

We do not believe that existing CCR surface impoundments should be subjected to all the

location restricti ons proposed for new impoundments, as currently proposed in the preamble. Subjecting existing surface impoundments to all the location restrictions must be documented by a detailed risk evaluation of CCR surface impoundments. EPA must demonstrate, based up on the results of the evaluation, that there arc increased risks posed by the impoundments. Otherwise, there is no justification for EPA to subject CCR surface impoundments to more stringent location restrictions than those imposed on MSWLFs.

Response: I n response to the discrepancies between the preamble language and the regulatory text, EPA admits that indeed an error was made in drafting the proposed regulatory language for the location restrictions as it applies to existing CCR surface impoundments. T he regulatory language should have included “all surface impoundments” as opposed to only “new surface impoundments.” The data supporting the Agency’s decision to impose all location standards on existing CCR surface impoundments is discussed extensively in the preamble of this rule.

T he commenter misstates the restrictions for land disposal units located in floodplains, which are already applicable to CCR surface impoundments. For land disposal units located in floodplains,

which would include all CCR l andfills and surface impoundments, the provisions of §257.3

- 1(b)(3) prohibit disposal practices that would result in the carrying away of solid waste by waters of a base flood. This is not an outright location ban. In today’s final rule, new and existing CCR surface impoundments cannot be located in wetlands, seismic impact zones, fault areas, or unstable areas unless the owner or operator makes a demonstration that the unit meets the requirements of a performance standard that serves as the alternative t o the location restriction. In addition, the location standards in subpart A of 40 CFR 257 for floodplains, endangered species, and surface waters continue to apply. Existing CCR surface impoundments can continue to operate if they can successfully make all applicable demonstrations

.

EPA disagrees with the commenter's assertion that in order to apply national minimum standards to existing CCR surface impoundments, specific risks must first be demonstrated at each location based upon an evaluation from ea ch individual unit. First, it is well established that an agency may regulate a class of similarly situated [entities] through rulemaking, rather41

than on the basis of an individualized assessment of every entity that will be subject to the rule.

And inde ed, Congress specifically directed EPA to proceed by rulemaking to establish minimum national standards under RCRA sections 1008(a) and 4004(a). Second, section 4004(a) does not require a demonstration of actual impacts, merely that these units present an unacceptable risk of harm. Thus, it is sufficient for EPA to establish a factual record demonstrating that the specific location restrictions in the final rule are necessary for CCR disposal units (landfills and surface impoundments), as a class, to ens ure that there will be no reasonable probability of adverse effects on health or the environment. In this case, the factual record supports the need for all of the location standards for existing CCR surface impoundments imposed by this rule.



### Comment Nu mber: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 18 

### Organization 1 

### : Dominion Resources Services, Inc.


### Commenter 1 : Lisa J. Keck on behalf of Pamela Faggert Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
In addition, since the structural assessments conducted to date show that none of the CCR surface impoundments pose immediate safety threats, the impoundments should be allowed to continue operating without all locatio n restrictions imposed on the impoundments. As such, the preamble language should be modified to be consistent with the Subtitle D regulatory text. which is consistent with the Subtitle D regulations for existing MSWLFs. CCR surface impoundments

should not be subjected to more stringent location restrictions than MSWLFs regulated under

Subtitle D.

Response: EPA disagrees with the commenter’s claim that the results of EPA’s structural integrity assessments show that the imposition of locatio n requirements on existing CCR surface impoundments are not appropriate or warranted. The risks associated with the catastrophic failure of a CCR surface impoundment, while significant, are not the only risks associated with these disposal units, and did not form the b asis for EPA’s proposed location restrictions. In the proposal and final rule EPA has discussed at length the real and significant potential for these units to contaminate groundwater and surface water sources of drinking water. Moreover, the structural integrity assessments demonstrated that in the absence of regulatory oversight, serious

risks to human health and the environment can arise.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06846

- 8 

### Organization 1 

### : Florida Department of Environmental Protection (FDEP)


### Commenter 1 : Richard B. Tedder on behalf Mary Jean Yon Commenter Type: State Governme nt
Classification: Substantive Comment Category:42

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.2 4.4.4.6 4.4.5.1.1 

### Comment Excerpt Text: o In Part 257.64(a) EPA is requiring that owner/ operators of new or existing CCR landfills or surface impoundments or lateral expansions located in unstable areas (such as karst areas in Florida) demonstrate that engineering measures have been incorporated into the facility to ensure that the structural components of the design will not be disrupte d. EPA goes on to say that this demonstration must be certified by an independent registered professional engineer. The Department agrees that this demonstration is appropriate for new facilities and lateral expansions of existing ones, but does not agree this is appropriate for existing facilities. How is a registered engineer to certify this determination? What criteria will the engineer use? For example, it is not appropriate or practical to install numerous borings down through the waste into the underl ying subsurface to determine the structural integrity of that subsurface. The figure referenced by EPA on page 35201 of the proposed rule suggests that approximately 50% of the entire state of Florida would be subject to this new requirement. The Departmen t recommends "existing facilities" be removed from this part of the rule and addressed in a separate section. This new section should require that a registered professional engineer conduct a visual inspection of the existing landfills or surface impoundme nts located in unstable areas and prepare a report on any evidence of sinkholes or subsidence activity found at them. If there appears to be active sinkholes at the facility then the engineer should recommend possible remedial measures to

minimize the like lihood of a failure occurring. In addition, the owner or operator must notify the state of this finding and what measures will be taken to minimize this failure.

Response: EPA disagrees with the commenter’s assertion that today’s required demonstration i s inappropriate for existing CCR landfills and surface impoundments located in karst areas. According to the U.S. Geological Survey nearly 25 percent of the United States is in karst terrain and a large segment of this area is undergoing rapid urban and in dustrial development. In a karst aquifer, depending on conditions, pollutants may flow from a point source into the ground to all seeps and springs in its distributary system, many of which could be located well outside the facility boundary.

As stated i n this final rule, t o make a demonstration it is important for owners and operators of CCR landfills and surface impoundments in karst areas to adequately characterize subsurface

conditions. EPA expects owners and operators of CCR landfills and surface i mpoundments to follow the Agency’s 1989 guidance titled Ground

- Water Monitoring in Karst Terranes: Recommended Protocols and Implicit Assumptions (EPA/600/X

- 89/050). Groundwater monitoring wells must be capable of detecting any contaminants released from the CCR unit into the karst aquifer. Therefore, the owner or operator should ensure, and a qualified professional engineer verify, that monitoring wells intercept these pathways. Verification will usually necessitate the use of tracers to track groundwat er flow towards offsite seeps or springs from the uppermost aquifer beneath the facility. For existing facilities

, i n lieu of physical borings owners and operators can utilize g eophysical techniques , including electroresistivity, ground

- penetrating radar , electromagnetic conductivity,

or seismic refraction to detect subsurface anomalies, but these should be applied and interpreted by a qualified professional engineer or geophysicist. Where paleosinks are suspected, in

- situ geotechnical techniques (e.g., electric piezometer) should be employed to detect subtle43

downward hydraulic gradients. Where feasible, subsurface drilling is recommended for verifying the results of geophysical investigations.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 33 

### Organization 1 

### : Avista Corp.


### Commenter 1 : Darrell Soyars Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Of significant concern, EPA states in the prea mble to the proposal that it intends to subject existing surface impoundments to all of these new location restrictions due to the risks posed by

these units. Id . at 35198

- 99. In the corresponding proposed regulatory text, however, existing surface impound ments are only subject to the floodplains and unstable area location restrictions.

See id . at 35243 (proposed 40 C.F.R. § 257.65). Avista assumes for purposes of these comments that EPA intends to subject existing CCR surface impoundments to the additiona l location restrictions consistent with the proposal’s preamble and that the Agency’s proposed regulatory text is inaccurate. Presumably, EPA copied the regulatory text for the regulations applicable to MSWLFs as codified at 40 C.F.R. Part 258. Although EP A intends to base the Subtitle D CCR disposal unit regulations in large part on the MSWLF regulations, here, the Agency clearly proposed to depart from those regulations, requiring all existing surface impoundments to comply with the full range of location restrictions, a condition that is normally only applied to new units. This is an extreme and draconian departure from the MSWLFs standards; EPA has not made a compelling justification for treating CCR impoundments more harshly than MSWLF units. Subjectin g existing surface impoundments to these location restrictions must be supported by an evaluation of the risks posed by facilities in each of these types of locations.

Response: In response to the discrepancies between the preamble language and the regulatory text, EPA admits that indeed an error was made in drafting the proposed regulatory language for the location restrictions as it applies to existing CCR surface impoundments. The regulatory language should have included “all surface impoundments” as opposed to only “new surface impoundments.” The data supporting the Agency’s decision to impose all location standards on existing CCR surface impoundments is discussed extensively in the preamble of this rule.

EPA, disagrees with the commenter's ass ertion that in order to justify national standards applicable to existing CCR surface impoundments that the location restrictions must be backed by an evaluation of the risks posed by facilities in each of these types of locations. The

commenter has misst ated the standard applicable to this rule. Congress specifically directed EPA to proceed by rulemaking to establish minimum national standards under RCRA sections 1008(a) and 4004(a). Section 4004(a) does not require a demonstration of actual impacts, me rely that these units present an unacceptable risk of harm. Thus, it is sufficient for EPA to establish a factual record demonstrating that the specific location restrictions in the final rule are necessary44

for CCR disposal units (landfills and surface i mpoundments), as a class, to ensure that there will be no reasonable probability of adverse effects on health or the environment. And in this case, as discussed in the preamble, the factual record supports the need for all of the location standards impose d by today's rule. Absent the location restrictions being promulgated, the risk of impacts to human health and the environment from the rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas would exceed acceptable l evels. In the absence of the restrictions in the final rule, failure of CCR units in these areas have, and in all likelihood would continue to result in damage cases where constituents from CCR are released affecting both groundwater and surface waters.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 35 

### Organization 1 

### : Avista Corp.


### Commenter 1 : Darrell Soyars Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4 4.4.4.4 

### Comment Excerpt Text: Avista does not believe that EPA can compile the record evidence necessary to support such a regulation. In fact, over the last year and a half since the TVA ash release, EPA has been conducting comprehensive structural integrity assessments of utility CCR impoundments across the country. The results of EPA’s investigation have not, to date, identified any CCR impoundment that presents the imminent threat of a catastrophic release similar to that which

occurred at TVA's Kingston facility. EPA Coal Combustion Residuals Impoundment Assessment Reports (available online at http://www.epa.gov/epawaste/nonhaz/industrial/special/ fossil/ surveys2/index.htm) (current as of Nov. 3, 2010). Specifically, EPA’s structural assessments rated the impoundments as “satisfactory,” “fair,” “poor,” or “unsatisfactory”

– terms commonly used in the field of dam safety. EPA explains that, “[e]xpert experience has shown that only impoundments rated as “unsatisfactory” pose immediate safety threat s.” Id . Of the 120 CCR impoundments evaluated thus far, none of the impoundments received an “unsatisfactory” rating.

Id . And, as EPA correctly points out, even those impoundments that received a “fair” or “poor” rating may have been found by the inspector s to be structurally sound, but did not receive a “satisfactory” rating based solely on lack of information. Therefore, there is no factual basis to assert that existing CCR impoundments pose the type of risks of catastrophic failure justifying the imposit ion of all the location restrictions on existing units; indeed, the record evidence makes clear that such restrictions are not appropriate or warranted.

Response: EPA disagrees with the commenter’s claim that the results of EPA’s structural integrity assessments show that the imposition of location requirements on existing units are not appropriate or warranted. The risks associated with the catastrophic failure of a C CR surface impoundment, while significant, are not the only risks associated with these disposal units, and did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real45

and significant potential for these units to cont aminate groundwater and surface water sources of drinking water. Moreover, the structural integrity assessments demonstrated that in the absence of regulatory oversight, serious risks to human health and the environment can arise.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 8 

### Organization 1 

### : Tri

- State Generation & Transmission


### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerp t Text: B. EPA Should Not Apply Location Restrictions To Existing Surface Impoundments Or

Landfills The proposed Subtitle D standards would impose various location restrictions to new and existing CCR surface impoundments and landfills. In particular, new and existing CCR surface impoundments and landfills could not be located in floodplains (a requirement that is already in effect) or unstable areas. In addition, new surface impoundments and new landfills could not be located in wetlands, fault areas, or s eismic impact zones and must be located at least two feet above the natural water table. Of significant concern, EPA states in the preamble to the proposal that it intends to subject existing surface impoundments to all of these new location restrictions due to the risks posed by these units. In the corresponding proposed regulatory text, however, existing surface impoundments are only subject to the floodplains and unstable area location

restrictions. EPA does not propo se subjecting existing CCR landfills to the full range of location restrictions because EPA reasons that such units are structurally less vulnerable than impoundments and that there would be a significant disposal capacity shortfalls if existing CCR landfi lls located in these

restricted areas

– i.e. , wetlands, fault areas or seismic impact areas

– had to close. Tri

- State G&T supports the proposal that existing CCR landfills should not be subject to any additional location

restrictions and shares EPA’s conce rn that subjecting them to such controls would cause a significant decrease in disposal capacity.

Tri

- State G&T shares EPA concern that many CCR landfills are located in areas that would be subject to one or more of the above

- referenced locations restricti ons and, while some landfills may be able to retrofit or already are in compliance with the performance standard tailored to the location restriction, some landfills could be forced to close due to the challenges of attempting to

retrofit to meet the locat ion

- based performance standards. Aside from the fact that there is no factual record supporting the application of these additional restrictions to existing landfills, closure of these units would create disposal shortfalls. Among other things, unit closur es would greatly complicate operations at many utilities that would need to find additional disposal capacity, including attempting to obtain new real estate for siting a new landfill (which may be a significant distance from a power plant), obtaining a ne w disposal permit for the landfill (which can take an extended period of time), and transporting significant volumes of CCRs great distances to the newly

- permitted facilities. There is simply no environmental basis for causing46

this disruption to utility CC R disposal practices by subjecting existing CCR landfills to the full range of location restrictions

Response: The commenter misstates the exist ing restrictions under for land disposal units located in floodplains, which are already applicable to both CCR landfills and CCR surface impoundments. For land disposal units located in floodplains, the provisions of §257.3

- 1(b)(3) prohibit disposal practices that would result in the carrying away of solid waste by waters of a base flood. This is not an outright location ban

. The other location criteria include restrictions relating to placement of all CCR disposal units above the uppermost aquifer, in wetlands, within fault areas, in seismic impact zones, and placement of all in unstable areas. Existing CCR

la ndfills are subject to only currently applicable restrictions for units on floodplains and new

location restrictions for units in unstable areas. All of these location restrictions require the owner or operator of a CCR unit to demonstrate that they meet the specific criteria. These restrictions are not prohibitions, but minimum national performance standard s for new CCR landfills and other CCR disposal facilities located in these sensitive areas.

EPA disagrees with the commenter’s assertion that the ap plication of location restrictions to existing landfills will result in reduced disposal capacity. For many facilities the Agency believes that owners and operators will be able to demonstrate compliance with the restrictions.

The Agency also disagrees with the commenter’s assertion that there is no factual record supporting the application of these additional restrictions to existing CCR landfills

. EPA did not propose to impose all location requirements on existing CCR landfills because of the concern that potential disposal capacity shortfalls could result in certain regions of the U.S. if existing CCR landfills in these locations were required to c lose. As stated in this rule, the Agency concluded that the potential disposal capacity shortfalls would pose more environmental and public health concerns, based on the potential for significant disruption of solid waste

management state

- wide from the clo sure of these units, than the potential risks from allowing existing CCR landfills to remain in these locations, given that these units would be subject to the design and operating requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 32 

### Organization 1 

### : Entergy Services, Inc.


### Commenter 1 : Joseph Hantz Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA Should Not Apply Location Restrictions To Existing Surface Impoundments Or

Landfills

The proposed Subtitle D standards would impose various location restrictions on new and existing CCR surface impoundments and landfills. In particular, new and existing CCR surface47

impoundments an d landfills could not be located in floodplains (a requirement that is already in effect) or unstable areas. In addition, new surface impoundments and new landfills cannot be located in wetlands, fault areas, or seismic impact zones and must be located at least two feet above the natural water table. Entergy shares EPA’s concern that many CCR landfills are located in areas that would be subject to one or more of the above

- referenced location restrictions. While some landfills may be able to retrofit or are already in compliance with the performance standard tailored to the location restriction, some landfills could be forced to close due to the challenges of attempting to retrofit to meet the location

- based performance standards. Aside from the fact

that the re is no factual record supporting the application of these additional restrictions to existing landfills, closure of these units would create storage and disposal shortfalls. Among other things, unit closures would greatly complicate operations at many ut ilities that would need to find additional storage and disposal capacity, requiring utilities to procure new real estate for siting a new landfill (which may be a significant distance from a power plant), obtain a new disposal permit for the landfill (whic h can take several years), and transport significant volumes of CCRs great distances to the newly

- permitted facilities. There is simply no environmental basis for causing this disruption to utility CCR disposal practices by subjecting existing CCR landfill s to the full range of location restrictions.

Response: The commenter misstates the existing restrictions under for land disposal units located in floodplains, which are already applicable to both CCR landfills and CCR surface impoundments. For land disp osal units located in floodplains, the provisions of §257.3

- 1(b)(3) prohibit disposal practices that would result in the carrying away of solid waste by waters of a base flood. This is not an outright location ban. The other location criteria include res trictions relating to placement of all CCR disposal units above the uppermost aquifer, in wetlands, within fault areas, in seismic impact zones, and placement of all in unstable areas. Existing CCR landfills are subject to only currently applicable restri ctions for units on floodplains and new location restrictions for units in unstable areas. All of these location restrictions require the owner or operator of a CCR unit to demonstrate that they meet the specific criteria. These restrictions are not proh ibitions, but minimum national performance standards for new CCR landfills and other CCR disposal facilities located in these sensitive areas.

EPA disagrees with the commenter’s assertion that the application of location restrictions to existing landfill s will result in reduced disposal capacity. For many facilities the Agency believes that owners and operators will be able to demonstrate compliance with the restrictions.

The Agency also disagrees with the commenter’s assertion that there is no factual record supporting the application of these additional restrictions to existing CCR landfills. EPA did not propose to impose all location requirements on existing CCR landfills because of the concern that potential disposal capacity shortfalls could result in certain regions of the U.S. if existing CCR landfills in these locations were required to close. As stated in this rule, the Agency concluded that the potential disposal capacity shortfalls would pose more environmental and public health concerns, base d on the potential for significant disruption of solid waste

management state

- wide from the closure of these units, than the potential risks from allowing existing CCR landfills to remain in these locations, given that these units would be subject to the design and operating requirements of the rule.48



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 15 

### Organization 1 

### : Missouri Joint Municipal Electric Utility Commission


### Commenter 1 : Floyd Gilzow Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.6.1.4 4.4.7.9.1 4.4.7.8.1 4.4.5.1.1 10.3.2.2 

### Comment Excerpt Text: In addition, APPA agrees with the key problems identified by USWAG, including:

- unrealistically short clo sure time frames for CCR disposal units

- the unwarranted application of all location restrictions to existing CCR surface impoundments

- the inclusion of inappropriate constituents in the proposed groundwater monitoring program

- the failure to allow for alternate liner systems

- the overly broad definition of “CCR Landfill” that inappropriately includes all “large scale fill operations.”

Response: In the proposed rule preamble EPA has explained the rationale for applying today’s provisions to existing CCR surface impoundments, and the commenter has submitted nothing to rebut that rationale. Thus, EPA maintains its determination that application of the location standards to existing CCR surface impoundments is necessary to achieve the standard in section

4 004(a). In addition, location standards in subpart A of 40 CFR 257 for floodplains, endangered species, and surface waters continue to apply for all CCR disposal units. Absent the location restrictions being promulgated, the risk of impacts to human heal th and the environment from the rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas would exceed acceptable levels. In the absence of the restrictions in the final rule, failure of CCR units in these areas have, a nd in all likelihood would continue to result in damage cases where constituents from CCR are released affecting both groundwater and surface waters.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07047

- 25 

### Organization 1 

### : Great River Energy


### Commenter 1 : Erik Silvola Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: GRE also feels EPA should not apply the location restrictions to existing landfills and impo undments as a blanket. While we understand applying restrictions to new units, we feel that existing facilities should have a mechanism to complete a professional evaluation regarding stability and performance of the existing facility.49

Response: While EPA agrees that existing CCR landfills and CCR surface impoundments should periodically receive stability and performance evaluations, absent the location restrictions being promulgated, the risk of impacts to human health and the environment from the rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas and landfills sited in floodplains and unstable areas would exceed acceptable levels.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 33 

### Organization 1 

### : Nebraska Department of Environmental Quality (NDEQ)


### Commenter 1 : David B. Haldeman Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: NDEQ’s permit program does not distinguish between landfills or surface impoundments. For purposes of permitting, both are considered to be “disposal areas” and are subject to the same regulatory requirements.

Response: EPA appreciates receiving this information regarding NDEQs permit program.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 26 

### Organization 1 

### : Xcel Energy


### Commenter 1 : Terry Coss Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

Location Restrictions: It is not necessary or appropriate for EPA to retroactively apply the proposed RCRA

- D location restrictions to existing CCR landfills. We do n ot have comprehensive inform ation on the number of facilities potential affe cted or the costs this may impose, but recognize that the costs could be significant. As noted in a prior comment, it can be exceedingly difficult to successfully site and construct new capacity elsewhere. Failure to consider and include this cost before p roposing the rule is another deficiency in the RIA. Location Restrictions Should Not be Absolute: There are few circumstances for which an engineering or technical solution is not possible, although the cost to implement that solution may prove to be exces sive for the facility owner. However, that cost/benefit decision should be left to the facility owner when a workable solution exists.

Response: In this final rule, existing CCR landfills are subject only to existing floodplain provisions under 40 CFR Par t 257 Subpart A and location restrictions for units in unstable areas. For many of these facilities EPA believes that owners and operators will be able to demonstrate50

compliance with the restrictions. In setting requirements under RCRA the standard is “no reasonable probability of adverse effects.” Costs are not a consideration in determining the appropriate criteria under RCRA section 4004(a ).



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08840

- 15 

### Organization 1 

### : Electric Power Generation Association


### Commenter 1 : Douglas L. Biden Commenter Type: Trade Association

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: B. Location Restrictions for Existing Landfills and Surface Impoundments

EPA is proposing to apply a number of location restrictions on existing landfills and surface impoundments. New and existing landfills and surface impoundments would be prohibited in flood plains and unstable areas. New landfills and surface impoundments, as well as existing surface impoundments would also be prohibited from being located in wetlands, fault areas, or seismic impact zones, and must be located at least two feet above the natural water table. 75 Fed. Reg. at 35241

- 35243. EPGA is especially concerned with the requirement that the existing surface impoundments are subject to all these location restrictions. 75 Fed. Reg. at 35198

- 35199. This is inconsistent with past rulemaking and is not justified in the proposed rulemaking.

As mentioned above, there i s no reason to force the closure of existing landfills and surface impoundments that are operating safely and effectively simply because they were in operation when the rules were promulgated. Here again, EPGA believes that the new requirements for ground water monitoring and structural integrity would provide the necessary protections to safety and the environment for these existing facilities

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply

location restrictions to e xisting surface impoundments or landfills. In the proposed rule preamble, EPA explained the rationale for applying today’s provisions to existing CCR surface impoundments, and the commenters have submitted nothing to rebut that rationale. Thus, EPA

maint ains its determination that application of the location standards to existing CCR surface impoundments is necessary to achieve the standard in section 4004(a). Absent the location restrictions being promulgated, the risk of impacts to human health and the environment from the rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas would exceed acceptable levels. In addition, the Agency is finalizing, as proposed, the unstable area location restriction for existing CC R landfills because the record clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) have and in all likelihood would continue, in the absence of the restrictions in the final rule, to result in damage cases where constituents from CCR are released affecting both groundwater and surface waters. As the Agency stated in the proposed rule, the impacts resulting from the failure of CCR units from51

location instability are of far more concern than any disposal capac ity concerns resulting from the closure of existing CCR disposal units in unstable areas.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 59 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC)


### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In addition, the proposed definition of "existing CCR landfill" should be modified to include lateral expansions of operating units where such expansion is within the site footprint of an area already approved and permitted by the state. There is no environmental or health

- based reason for not including approved and permitted locations within the definition of an exist ing CCR landfill. The undeveloped portion of the approved permitted site has undergone environmental and related technical review by the permitting authorities and has been approved for the location

of a CCR landfill. To exclude a location that has otherwi se already been permitted for a CCR landfill from the definition of an "existing" landfill merely because there is not a binding contractual commitment to begin construction would unfairly subject these areas to the design and operating standards for "new CCR landfills," when identical locations are considered "existing CCR landfills" and subject to different operating standards based merely on the existence of a contract to commence construction. Such a distinction is arbitrary and capricious and provides no practical benefit.

Response: As stated in the preamble and repeated here, EPA agrees with commenters that with regard to the “commence construction” provision of the definition, there should be no distinction between undeveloped areas where federal, st ate and local approvals or permits necessary to begin physical construction have been obtained, and undeveloped areas that have obtained the same approvals but also have a binding contractual agreement in place for the construction of the unit. Given the p roposed language in the definition, “the owner or operator has entered into contractual obligations

– which cannot be cancelled or modified without substantial loss

– for physical construction of the CCR landfill to be completed within a reasonable time,” the Agency has concluded, that absent some type of guidance that objectively discusses how “substantial loss” could be calculated by the owner or operator, the purpose and/or effect of this requirement in meeting the objectives of this rule remain unclear. Consequently, the Agency has decided to remove this provision from the definition of “existing CCR landfill” but is retaining what the Agency considers are the two most important elements of the definition. First, that the owner or operator has obtained the federal, state, and local approvals or permits necessary to begin physical construction; and second, that a continuous on

- site, physical construction program has begun (i.e., groundbreaking has occurred). Therefore, EPA is finalizing the definition of “existing CCR landfill” as follows.52

Existing CCR landfill means a CCR landfill that receives CCR both before and after [INSERT DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER], or for which construction commenced prior to [INSERT DATE 1 80 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER] and receives CCR on or after [INSERT DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER]. A CCR landfill has commenced construction if the owner or operator has obtained the fe deral, state, and local approvals or permits necessary to begin physical construction and a continuous

on

- site, physical construction program had begun prior to [INSERT DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER].



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09274

- 15 

### Organization 1 

### : RRI Energy Inc.


### Commenter 1 : S. Dixon Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

B. Locatio n Restrictions for Existing Landfills and Surface Impoundments

EPA is proposing to apply a number of location restrictions on existing landfills and surface impoundments. New and existing landfills and surface impoundments would be prohibited in flood pla ins and unstable areas. New landfills and surface impoundments, as well as existing surface impoundments would also be prohibited from being located in wetlands, fault areas, or seismic impact zones, and must be located at least two feet above the natural water table. 75 Fed. Reg. at 35241

- 35243. RRI is especially concerned with the requirement that the existing surface impoundments are subject to all these location restrictions. 75 Fed. Reg. at 35198

- 35199.

This is inconsistent with past rulemaking and is not justified in the proposed rulemaking.

As mentioned above, there is no reason to force the closure of existing landfills and surface impoundments that are operating safely and effectively simply because they were in operation when the rules were promu lgated. Here again, RRI believes that the new requirements for ground water monitoring and structural integrity would provide the necessary protections to safety and the environment for these existing facilities

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply location restrictions to existing surface impoundments or landfills. In the proposed rule preamble, EPA explained the rationale for applying today’s provisions to existing CCR surface impoundments, an d the commenters have submitted nothing to rebut that rationale. Thus, EPA maintains its determination that application of the location standards to existing CCR surface impoundments is necessary to achieve the standard in section 4004(a). In addition, l ocation standards in subpart A of 40 CFR 257 for floodplains, endangered species, and surface waters continue to apply for all CCR disposal units. Absent the location restrictions being promulgated,53

the risk of impacts to human health and the environment from the rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas would exceed acceptable levels. In addition, the Agency is finalizing, as proposed, the unstable area location restriction for existing CCR landfills b ecause the record clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) have and in all likelihood would continue, in the absence of the restrictions in the final rule, to result in damage cases where constit uents from CCR are released affecting both groundwater and surface waters. As the Agency stated in the proposed rule, the impacts resulting from the failure of CCR units from location instability are of far more concern than any disposal capacity concerns resulting from the closure of existing CCR disposal units in unstable areas.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 23 

### Organization 1 

### : Progress Energy, Inc.


### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4 

### Comment Excerpt Text: EPA should not apply location restrictions to existing surface impoundments or landfills

The proposed Subtitle D standards would impo se various location restrictions to new and existing CCR surface impoundments and landfills. In particular, new and existing CCR surface impoundments and landfills could not be located in floodplains (a requirement that is already in effect) or unstable ar eas. In addition, new surface impoundments and new landfills could not be located in wetlands, fault areas or seismic impact zones, and must be located at least two feet above the natural water table. Of significant concern, EPA states in the preamble to t he proposal that it intends to subject existing surface impoundments to all of these new location restrictions due to the risks posed by these units. In the corresponding proposed regulatory text, however, existing surface impoundments are only subject to the floodplains and unstable area location

restrictions.

For purposes of these comments, Progress Energy assumes that EPA intends to subject existing CCR surface impoundments to the additional location restrictions consistent with the proposal’s preamble. Presumably, EPA copied the regulatory text for the regulations applicable to MSWLFs as codified at 40 C.F.R. Part 258. Although EPA intends to base the Subtitle D CCR disposal unit regulations in large part on the MSWLF regulations, the Agency clearly dep arts from those regulations in proposing to require all existing surface impoundments to comply with the full range of location restrictions, a condition that is normally applied only to new units. This is an extreme departure from the MSWLFs standards; EP A has not made a compelling justification for treating CCR impoundments more harshly than MSWLF units.

Subjecting existing surface impoundments to these location restrictions must be backed by an evaluation of the risks posed by facilities in each of thes e types of locations. Progress Energy is54

not aware of structural stability issues directly caused by the placement of surface impoundments in wetlands, fault areas, or seismic impact areas of less than two feet above the natural water table. More important ly, apparently neither is EPA; the agency does not even begin to assess the risks associated with the placement of existing impoundments in these areas and simply asserts that the risks associated with impoundments are greater than those associated with la ndfills, citing the TVA spill as an example of the environmental consequences of a “catastrophic collapse” of a CCR impoundment. These general assertions do not constitute the type of record evidence necessary to impose such sweeping requirements on all ex isting CCR surface impoundments. The agency must conduct a detailed analysis of CCR surface impoundments located in these restricted locations and demonstrate, based on this analysis, that there are increased risks from these impoundments to justify such a significant departure from how the Agency addressed and regulated MSWLFs.

Progress Energy does not believe that EPA can compile the record evidence necessary to support such a regulation. In fact, over the last year and a half since the TVA ash release, EPA has been conducting comprehensive structural integrity assessments of utility CCR impoundments across the country. The results of EPA’s investigation have not, to date, identified any CCR impoundment that presents the imminent threat of a catastrophic release similar to that which occurred at TVA’s Kingston facility. Specifically, EPA’s structural assessments rated the impoundments as “satisfactory,” “fair,” “poor,” or “unsatisfactory”

– terms commonly used in the field of dam safety. EPA explains that , “[e]xpert experience has shown that only impoundments rated as ‘unsatisfactory’ pose immediate safety threats.” Of the 120 CCR impoundments evaluated thus far, none of the impoundments received an “unsatisfactory” rating. As EPA correctly points out, eve n those impoundments that received a “fair” or “poor” rating may have been found by the inspectors to be structurally sound, but did not receive a “satisfactory” rating based primarily on lack of information. Therefore, there is no factual basis

to assert that existing CCR impoundments pose the type of risks of catastrophic failure justifying the imposition of all the location restrictions on existing units; indeed, the record evidence makes

clear that such restrictions are not warranted

Response: EPA disa grees with the commenter’s assertion that the Agency should not apply location restrictions to existing surface impoundments or landfills. In the proposed rule preamble, EPA has explained the rationale for applying today’s provisions to existing CCR

surfa ce impoundments, and the commenters have submitted nothing to rebut that rationale. Thus, EPA maintains its determination that application of the location standards to existing CCR surface impoundments is necessary to achieve the standard in section 4004( a). Absent the location restrictions being promulgated, the risk of impacts to human health and the environment from the rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas would exceed acceptable levels. In add ition, the Agency is finalizing, as proposed, the unstable area location restriction for existing CCR landfills because the record clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains)

have and in all likelih ood would continue, in the absence of the restrictions in the final rule, to result in damage cases where constituents from CCR are released affecting both groundwater and

surface waters.

EPA, disagrees with the commenter's assertion that in order to justi fy national standards applicable to existing surface impoundments that the location restrictions must be backed by an55

evaluation of the risks posed by facilities in each of these types of locations. The commenter has misstated the standard applicable to t his rule. Congress specifically directed EPA to proceed by rulemaking to establish minimum national standards under RCRA sections 1008(a) and 4004(a). Section 4004(a) does not require a demonstration of actual impacts, merely that these units

present an unacceptable risk of harm. Thus, it is sufficient for EPA to establish a factual record demonstrating that the specific location restrictions in the final rule are necessary for CCR disposal units (landfills and surface impoundments), as a class, to ensu re that there will be no reasonable probability of adverse effects on health or the environment. And in this case, as discussed in the preamble, the factual record supports the need for all of the location standards imposed by today's rule.

EPA further disagrees with the commenter’s claim that the results of EPA’s structural integrity assessments show that the imposition of location requirements on existing units are not appropriate or warranted. The risks associated with the catastrophic fa ilure of a CCR surface impoundment, while significant, are not the only risks associated with these disposal units, and did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real and significant potential for these u nits to contaminate groundwater and surface water sources of drinking water. Moreover, the structural integrity assessments demonstrated that in the absence of regulatory oversight, serious risks to human health and the environment can arise.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10166

- 14 

### Organization 1 

### : Consumers Energy Company


### Commenter 1 : Gary A. Dawson Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt T ext: Location (siting) requirements should not apply to existing facilities. Siting requirements are intended to help assure that the permitted/licensed surface impoundment or landfill meets performance standards. There is no rationale to apply these criteria to existing facilities that otherwise meet performance criteria.

Response: the finalized location criteria are minimum national standards under RCRA sections 1008(a) and 4004(a). The rationale and factual record supporting the application of the se standards to existing CCR disposal units (surface impoundments and landfills) is extensively in the preambles to t he proposal and this final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 49 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) et al.


### Commenter 1 : James R. Roewer Commenter Type: Trade Association

Classification: Substantive Comment Category:56

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4 

### Comment Excerpt Text: B. EPA Should Not Apply Location Restricti ons To Existing Surface Impoundments Or

Landfills

The proposed Subtitle D standards would impose various location restrictions to new and existing CCR surface impoundments and landfills. In particular, new and existing CCR surface impoundments and landfil ls could not be located in floodplains (a requirement that is already in effect) or unstable areas. Id. at 35242

- 43 (proposed 40 C.F.R. § 257.64). [Footnote 42: For this and a few other location restrictions, disposal units can be located in these location s if they meet a design or operating standard sufficient that the risk associated with the location restriction has been addressed. ] In addition, new surface impoundments and new landfills could not be located in wetlands, fault areas, or seismic impact z ones and must be located at least two feet above the

natural water table. Id. at 35241

- 42 (proposed 40 C.F.R. §§ 257.60

- 257.63.) Of significant concern, EPA states in the preamble to the proposal that it intends to subject existing surface impoundments t o all of these new location restrictions due to the risks posed by these units. Id. at

35198

- 99. In the corresponding proposed regulatory text, however, existing surface impoundments are only subject to the floodplains and unstable area location restrictio ns. See id. at 35243 (proposed 40 C.F.R. § 257.65).

USWAG assumes for purposes of these comments that EPA intends to subject existing CCR surface impoundments to the additional location restrictions consistent with the proposal‘s preamble and that the Age ncy‘s proposed regulatory text is inaccurate. Presumably, EPA copied the regulatory text for the regulations applicable to MSWLFs as codified at 40 C.F.R. Part 258. Although EPA intends to base the Subtitle D CCR disposal unit regulations in large part on the MSWLF regulations, here, the Agency clearly departs from those regulations, requiring all existing surface impoundments to comply with the full range of location restrictions, a condition that is normally only applied to new units. This is an extreme a nd draconian departure from the MSWLFs standards; EPA has not made a compelling justification for treating CCR impoundments more stringently than MSWLF units.

Subjecting existing surface impoundments to these location restrictions must be backed by an

eva luation of the risks posed by facilities in each of these types of locations. USWAG is not aware of structural stability issues directly caused by the placement of surface impoundments in wetlands, fault areas, or seismic impact areas of less than two feet above the natural water table. More importantly, apparently neither is EPA. The Agency does not even begin to assess the risks associated with the placement of existing impoundments in these areas. EPA simply asserts that the risks associated with impound ments are greater than those associated with landfills and cites to the TVA spill as an example of the environmental consequences of a “catastrophic collapse” of a CCR impoundment. Id. at 35199. These general assertions, however, do not constitute the

type of record evidence necessary to impose such sweeping requirements on all existing CCR surface impoundments. The Agency must conduct a detailed analysis of CCR surface impoundments located in these restricted locations and demonstrate, based on this analys is, that there are, in fact, increased risks from these impoundments to justify such a significant departure from how the Agency addressed and regulated MSWLFs.57

USWAG does not believe that EPA can compile the record evidence necessary to support such a

re gulation. In fact, over the last year and a half since the TVA ash release, EPA has been conducting comprehensive structural integrity assessments of utility CCR impoundments across the country. The results of EPA‘s investigation have not, to date, identif ied any CCR impoundment that presents the imminent threat of a catastrophic release similar to that which occurred at TVA‘s Kingston facility. EPA Coal Combustion Residuals Impoundment Assessment Reports (available online at http://www.epa.gov/epawaste/non haz/industrial/special/fossil/surveys2/index.htm) (current as of Nov. 3, 2010). Specifically, EPA‘s structural assessments rated the impoundments as “satisfactory,” “fair,” “poor,” or “unsatisfactory”

– terms commonly used in the field of dam safety. EPA e xplains that, “[e]xpert experience has shown that only impoundments rated as ?unsatisfactory‘ pose immediate safety threats.” Id. Of the 120 CCR impoundments evaluated thus far, none of the impoundments received an “unsatisfactory” rating. Id. And, as EPA correctly points out, even those impoundments that received a “fair” or “poor” rating may have been found by the inspectors to be structurally sound, but did not receive a “satisfactory” rating based solely on lack of information. Therefore, there is no fa ctual basis to assert that existing CCR impoundments pose the type of risk of catastrophic failure that justify the imposition of all the location restrictions on existing units; indeed, the record evidence makes clear that such

restrictions are not warran ted.

EPA does not propose subjecting existing CCR landfills to the full range of location restrictions because EPA reasons that such units are structurally less vulnerable than impoundments. Also, there would be significant disposal capacity shortfalls if existing CCR landfills located in these

restricted areas

– i.e., wetlands, fault areas or seismic impact areas

– had to close. 75 Fed. Reg. at 35198. USWAG agrees with EPA that existing CCR landfills should not be subject to these

additional location rest rictions and shares EPA‘s concern that subjecting them to such controls would cause a significant decrease in disposal capacity.

USWAG shares EPA‘s concern that many CCR landfills are located in areas that would be subject to one or more of the above

- refe renced location restrictions and, while some landfills may be able to retrofit or already are in compliance with the performance standard tailored to the location restriction, some landfills could be forced to close due to the challenges of attempting to

r etrofit to meet the location

- based performance standards. Aside from the fact that there is no factual record supporting the application of these additional restrictions to existing landfills, closure of these units would create disposal shortfalls. Among other things, unit closures would greatly complicate operations at many utilities that would need to find additional disposal capacity, requiring utilities to procure new real estate for siting a new landfill (which may be a significant distance from a pow er plant), obtain a new disposal permit for the landfill (which can take an extended period of time), and transport significant volumes of CCRs great distances to the newly

- permitted facilities. There is simply no environmental basis for causing this disru ption to utility CCR disposal practices by subjecting existing CCR landfills to the full range of location

restrictions.

Response: I n response to the discrepancies between the preamble language and the regulatory text, EPA admits that indeed an error was m ade in drafting the proposed regulatory language for the location restrictions as it applies to existing CCR surface impoundments. The regulatory58

language should have included “all surface impoundments” as opposed to only “new surface impoundments.”

The commenter misstates the restrictions for land disposal units located in flood plains , which

would include all CCR lan dfills and surface impoundments. For these units the provisions of §257.3

- 1(b)(3) prohibit disposal practices that would result in the carr ying away of solid waste by waters of a base flood. This is not an outright location ban. As discussed elsewhere in this preamble, the five location restrictions apply to all new CCR landfills, all new and existing CCR surface impoundments, and all later al expansions of CCR units; however, existing CCR landfills are only subject to the location restriction for unstable areas. CCR disposal units cannot be located in wetlands, seismic impact zones, fault areas, or unstable areas unless the owner or

operator makes a demonstration that the unit meets the requirements of a performance standard that serves as the alternative to the location restriction. In addition, the location restriction applicable to the base of CCR disposal units (all surface impoundments, existing landfills, and all lateral expansions) has been finalized at no less than five feet above the upper limit of the uppermost aquifer

. Moreover, the existing location standards in subpart A of 40 CFR 257 for floodplains, endangered species, and surf ace waters continue to apply. For most location

restrictions

, e xisting CCR surface impoundments can continue to operate if they can successfully make all applicable demonstrations.

EPA did not propose to impose all location requirements on existing CCR l andfills because of the concern that potential disposal capacity shortfalls could result in certain regions of the U.S. if existing CCR landfills in these locations were required to close. As stated in this rule, the Agency concluded that the potential dis posal capacity shortfalls would pose more environmental and public health concerns, based on the potential for significant disruption of solid waste

management state

- wide from the closure of these units, than the potential risks from allowing existing CCR landfills to remain in these locations, given that these units would be subject to the design and operating requirements of the rule. However, the Agency is finalizing as proposed the unstable area location restriction for existing CCR landfills because the record clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) have and in all likelihood would continue, in the absence of the res trictions in the final rule, to result in damage cases where constituents from CCR are released affecting both groundwater and surface waters. As the Agency stated in the proposed rule, the impacts resulting from the failure of CCR units

from location inst ability are of far more concern than any disposal capacity concerns resulting from the closure of existing CCR disposal units in unstable areas. Further, EPA believes that many facilities will be able to make the requisite demonstrations with the location restrictions. Moreover, if a CCR surface impoundment does have to close due to a lack of disposal capacity, the facility may be eligible, in certain circumstances, for an extension of time to find additional capacity before it must begin closure of the u nit.

EPA disagrees with the commenter's assertion that in order to apply national minimum standards to existing CCR surface impoundments, specific risks must first be demonstrated at each location based upon an evalua tion from each individual unit. Firs t, i t is well established that an agency may regulate a class of similarly situated [entities] through rulemaking, rather than on the basis of an individualized assessment of every entity that will be subject to the rule. And indeed, Congress specifically directed EPA to proceed by rulemaking to establish minimum national standards under RCRA sections 1008(a) and 4004(a). Second, section 4004(a) does not require a59

demonstration of actual impacts, merely that these units present an unacceptable risk of har m. Thus, it is sufficient for EPA to establish a factual record demonstrating that the specific location restrictions in the final rule are necessary for CCR disposal units (landfills and surface impoundments), as a class, to ensure that there will be no reasonable probability of adverse effects on health or the environment. In this case, the factual record

, as extensively discussed in the preamble to the proposal to this rule, supports the need for all of the location standards for existing CCR surface impoundments imposed by this rule. For most location restrictions facilities need to either demonstrate that the surface impoundment meets the performance standard that serves as the alternative to the prohibition, retrofit the unit so that it can meet t he performance standard, or close.

.

EPA further disagrees with the commenter’s claim that the results of EPA’s structural integrity assessments show that the imposition of location requirements on existing units are not appropriate or warranted. The risks associated with the catastrophic failure of a CCR surface impoundment, while significant, are not the only risks associated with these disposal units, and did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real

a nd significant potential for these units to contaminate groundwater and surface water sources of drinking water. Moreover, the structural integrity assessments demonstrated that in the absence of regulatory oversight, serious risks to human health and the environment can arise.

Section 4.4.4.2

- EPA seeks comment and additional info regarding extent to which CCR LF capacity would be affected by applying proposed location restrictions for floodplains and unstable areas (i.e., poor foundation conditions, areas susceptible to mass movement, karst terraces) to existing CCR LFs; EPA is particularly interested in prevalence of existing CCR LFs in floodplains and unstable areas (35198, 35223) Total Number of Submissions: 12 Total Number of Comments: 12



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 02821

- 5 

### Organization 1 

### : Missouri Coalition for the Environment


### Commenter 1 : Matt Ashley Commenter Type: Advocacy Group

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment E xcerpt Text: Another example of the potential for serious coal ash pollution risk is a proposed coal ash landfill near Labadie, Missouri. The local electric utility, Ameren UE, is proposing a coal ash landfill near its coal plant in the town of Labadie. Th is proposed landfill site is in a floodplain that was beneath ten feet of water in the 1993 flood.[Footnote 1: http://www.fox2now.com/news/ktvi

labadie

- mo

- landfill

- concerns_020110,0,2210010.story]

In the event of a flood, even the safest, most regulatory

- compliant landfill would be useless in60

preventing the escape of coal ash into the water supply and needlessly exposing the public to harmful chemicals. Especially since data showing that flood severity and frequency will increase in many areas over the nex t several decades, disposing of coal ash in floodplains creates an unnecessary risk.

Response: Existing land disposal units in floodplains are already subject to the locations

restrictions in 40 CFR 257.3

- 1, which prohibits practices that restrict flow of the base flood, reduce temporary water storage capacity of the floodplain, or result in washo ut of solid waste so as to pose a hazard to human life, wildlife, or land or water resources. EPA encourages states to adopt these provisions, and Missouri is free to adopt more stringent standards.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 52 

### Organi zation 1 

### : Comite Dialogo Ambiental


### Commenter 1 : Ruth Santiago Commenter Type: Advocacy Group

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Battlefield Golf Course potential damage case i s an example of the fact that presumably protective state provisions did not prevent contamination of an aquifer from CCR land filling. In spite of the fact that the Virginia Administrative Code required that CCRs be placed at least two feet above the grou nd water level and be covered by an 18 inch soil cap, onsite wells were contaminated by CCRs and threaten to migrate off

- site (35231). A requirement that fill or land application of CCRs be placed two or more feet from the upper limit of the natural water table is not sufficiently protective of human health and the environment because it does not take into account rainy periods where aquifer water levels rise above the natural water table. CCR use should be totally prohibited in flood plains, wetlands and k arst areas. There is evidence that heavy rainfall exacerbates CCR contamination. As was documented in the Emory River, elevated levels of arsenic, cadmium, chromium and lead were detected after heavy rainfall (35233). Groundwater monitoring is an after the fact measure that does not prevent aquifer contamination and thus does not justify EPA’s characterization as the “single most critical set of protective measures on which EPA is relying.” (35205).

Response: EPA is aware that significant gaps remain in many state regulatory programs, and in this final rule, the Agency has not made a final determination regarding the ir adequacy. In the interim, the federal requirements of this rule can be administered by citizen suit enforcement. The Agency disagrees wi th the commenter’s assertion that CCR landfills should be prohibited from locating in wetlands, floodplains, and karst areas. In this final rule, new CCR units and lateral expansions are prohibited from locating in wetlands and karst areas unless a

demons tration is made that the unit meets specific performance criteria. CCR units, including landfills, located in floodplains are already subject to location restrictions in 40 CFR 257.3

- 1.61



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06198

- 5 

### Organization 1 

### : Amer en Corporation


### Commenter 1 : Paul R. Pike Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.1 

### Comment Excerpt Text: IV. Existing Surface Impoundments Or Landfills Location Restrictions

The proposed Subtitle D standards would impose various location restrictions to new and existing CCR surface impoundments and landfills. In particular, new and existing CCR surface impoundments and landfills could not be located in floodplains or unstable areas except if they meet a design or operating standard sufficient that the risk associated with the location restriction

has been addressed. Id. at 35242

- 43 (proposed 40 C.F.R. § 257.64). In addition, new surface impoun dments and new landfills could not be located in wetlands, fault areas, or seismic impact

zones and must be located at least two feet above the natural water table. Id. at 35241

- 42 (proposed 40 C.F.R. §§ 257.60

- 257.63.) Of significant concern, EPA states in the preamble to the proposal that it intends to subject existing surface impoundments to al/ of these new location restrictions due to the risks posed by these units. Id. at 35198

- 99. In the corresponding proposed regulatory text, however, existing sur face impoundments are only subject to the floodplains and unstable area location restrictions. See id. at 35243 (proposed 40 C.F.R. § 257.65).

We assume for purposes of these comments that EPA intends to subject existing CCR surface impoundments to the a dditional location restrictions consistent with the proposal's preamble and that the Agency's proposed regulatory text is inaccurate. Presumably, EPA copied the regulatory text for the regulations applicable to MSWLFs as codified at 40 C.F.R. Part 258. Alt hough EPA intends to base the Subtitle D CCR disposal unit regulations in large part on the MSWLF regulations, here, the Agency clearly departs from those regulations, requiring all existing surface impoundments to comply with the full range of location re strictions, a condition that is normally only applied to new units. This is a departure from the MSWLFs standards; EPA has not made a compelling justification for treating CCR impoundments more harshly than MSWLF

units.

Subjecting existing surface impoun dments to these location restrictions must be backed by an evaluation of the risks posed by facilities in each of these types of locations. Ameren is not aware of structural stability issues directly caused by the placement of surface impoundments in

wetla nds, fault areas, or seismic impact areas of less than two feet above the natural water table. The Agency does not assess the risks associated with the placement of existing impoundments in these areas. EPA simply asserts that the risks associated wtth imp oundments are greater than those associated with landfills and cites to the TVA spill as an example of the environmental consequences of a "catastrophic collapse" of a CCR impoundment. Id. at 35199. The Agency must conduct a detailed analysis of CCR surfac e impoundments located in these restricted locations and demonstrate, based on this analysis, that there are, in fact, increased risks from62

these Impoundments to justify such a significant departure from how the Agency addressed and regulated MSWLFs.

EPA does not propose subjecting existing CCR landfills to the full range of location restrictions because EPA reasons that such units are structurally less vulnerable than impoundments. Also, there would be significant disposal capacity shortfalls if existing CCR landfills located in these

restricted areas

- i.e., wetlands, fault areas or seismic impact areas

- had to close. 75 Fed. Reg. at 35198. Ameren agrees with EPA that existing CCR landfills should not be subject to these

additional location restrictions and shares EPA's concern that subjecting them to such controls would cause a significant decrease in disposal capacity.

Ameren shares EPA's concern that many CCR landfills are located in areas that would be subject

to one or more of the above

- referenced location restrictions and, while some landfills may be able to retrofit or already are in compliance with the performance standard tailored to the location restriction, some landfills could be forced to close due to the challenges of attempting to

retrofi t to meet the location

- based performance standards. Aside from the fact that there is no factual record supporting the application of these additional restrictions to existing landfills, closure of these units would create disposal Shortfalls. Among other things, unit closures would greatly complicate operations at many utilities that would need to find additional disposal capacity, requiring utilities to obtain procure new real estate for siting a new landfill (which may be a significant distance from a po wer plant), obtain a new disposal permit for the landfill (which can take an extended period of time), and transport significant volumes of CCRs great distances to the newly

- permitted facilities. There is simply no environmental basis for causing this

disr uption to utility CCR disposal practices by subjecting existing CCR landfills to the full range

of location restrictions.

Response: In response to the discrepancies between the preamble language and the regulatory text, EPA admits that indeed an error was made in drafting the proposed regulatory language for the location restrictions as it applies to existing CCR surface impoundments. The regulatory language should have included “all surface impoundments” as opposed to only “new surface impoundments.”

The commenter misstates the restrictions for land disposal units located in floodplains, which would include all CCR landfills and surface impoundments. For these units the provisions of §257.3

- 1(b)(3) prohibit disposal practices that would result in the car rying away of solid waste by waters of a base flood. This is not an outright location ban. As discussed elsewhere in this preamble, the five location restrictions apply to all new CCR landfills, all new and existing CCR surface impoundments, and all late ral expansions of CCR units; however, existing CCR landfills are only subject to the location restriction for unstable areas. CCR disposal units cannot be located in wetlands, seismic impact zones, fault areas, or unstable areas unless the owner or

operato r makes a demonstration that the unit meets the requirements of a performance standard that serves as the alternative to the location restriction. In addition, the location restriction applicable to the base of CCR disposal units (all surface impoundments , existing landfills, and all lateral expansions) has been finalized at no less than five feet above the upper limit of the uppermost aquifer

. Moreover, the existing location standards in subpart A of 40 CFR 257 for floodplains, endangered species, and su rface waters continue to apply. For most location63

restrictions, existing CCR surface impoundments can continue to operate if they can successfully make all applicable demonstrations.

EPA did not propose to impose all location requirements on existing CCR landfills because of the concern that potential disposal capacity shortfalls could result in certain regions of the U.S. if existing CCR landfills in these locations were required to close. As stated in this rule, the Agency concluded that the potential d isposal capacity shortfalls would pose more environmental and public health concerns, based on the potential for significant disruption of solid waste

management state

- wide from the closure of these units, than the potential risks from allowing existing C CR landfills to remain in these locations, given that these units would be subject to the design and operating requirements of the rule. However, the Agency is finalizing as proposed the unstable area location restriction for existing CCR landfills because the record clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) have and in all likelihood would continue, in the absence of the restrictions in the final rule, to result in damage

cases where constituents from CCR are released affecting both groundwater and surface waters. As the Agency stated in the proposed rule, the impacts resulting from the failure of CCR units from location instability are of far more concern than any disposal capacity concerns result ing from the closure of existing CCR disposal units in unstable areas. Further, EPA believes that many facilities will be able to make the requisite demonstrations with the location restrictions. Moreover, if a CCR surface impoundment does have to close due to a lack of disposal capacity, the facility may be eligible, in certain circumstances, for an extension of time to find additional capacity before it must begin closure of the unit.

EPA disagrees with the commenter's assertion that in order to apply national minimum standards to existing CCR surface impoundments, specific risks must first be demonstrated at each location based upon an evaluation from each individual unit. First, it is well established that an agency may regulate a class of similarly situated [entities] through rulemaking, rather than on the basis of an individualized assessment of every entity that will be subject to the rule. And indeed, Congress specifically directed EPA to proceed by rulemaking to establish minimum national

stand ards under RCRA sections 1008(a) and 4004(a). Second, section 4004(a) does not require a demonstration of actual impacts, merely that these units present an unacceptable risk of harm. Thus, it is sufficient for EPA to establish a factual record demonstr ating that the specific location restrictions in the final rule are necessary for CCR disposal units (landfills and surface impoundments), as a class, to ensure that there will be no reasonable probability of adverse

effects on health or the environment. In this case, the factual record, as extensively discussed in the preamble to the proposal to this rule, supports the need for all of the location standards for existing CCR surface impoundments imposed by this rule. For most location restrictions

facili ties need to either demonstrate that the surface impoundment meets the performance standard that serves as the alternative to the prohibition, retrofit the unit so that it can meet the performance standard, or close.

EPA further disagrees with the comment er’s claim that the results of EPA’s structural integrity assessments show that the imposition of location requirements on existing units are not appropriate or warranted. The risks associated with the catastrophic failure of a CCR surface impoundment, wh ile significant, are not the only risks associated with these disposal units, and did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real and significant potential for these units to contaminate groundwater and su rface water sources of64

drinking water. Moreover, the structural integrity assessments demonstrated that in the absence of regulatory oversight, serious risks to human health and the environment can arise.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 2 

### Organization 1 

### : We Energies


### Commenter 1 : Art Covi Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: COMMENT: We Energies has been required to meet the lo cation restrictions relative to wetlands, fault areas and unstable areas as outlined in Sections 257.61, 257.62, 257.63 and 257.64 of the proposed rule since the inception of Part 115 of PA 641 in Michigan and NR 500 in Wisconsin. The proposed rules for pl acement above the natural water table (Section 257.60) are not feasible in areas dominated by heavy clay soils, such as Southeast Wisconsin. In areas of poorly drained soils, the natural water table as defined in the proposed rule, is typically within a

fe w feet of the ground surface in climates such as Wisconsin’s. In order for We Energies to site a landfill in the area of our operation in Southeast Wisconsin, we would need to locate the base of the liner near the ground surface. Such a development would b e extremely inefficient because we would need to increase the acreage substantially in order to achieve the necessary disposal airspace.

We would also need to import hundreds of thousands of tons of soil, at great expense of

economical and natural resour ces in order to construct liner components, berms and cover components to compensate for our inability to attain these necessary soils during excavation for the liner base. Wisconsin regulations (NR 500) allow the placement of landfill liners below the

wat er table, defined as zone of saturation landfills. We Energies, and other entities, have been operating zone of saturation landfills with liners and leachate collection systems for many years without any evidence of leachate leakage through these liners. W e Energies proposes that the EPA rewrite Section 257.60 to allow zone of saturation landfills as currently defined in NR 500

of the Wisconsin Administrative Code.

Response: EPA understands that in some regions (such as areas of Florida or Wisconsin) it wil l be difficult or impossible to meet this requirement given the hydrogeologic conditions. EPA, however, has damage case evidence that implicates failure of some compacted clay liners, in

- situ clay liners and single membrane liners at CCR disposal facilitie s. To be most protective, EPA believes that CCR surface impoundments should not be sited in sensitive locations. And even though costs are not relevant in determining the appropriate criteria under §4004(a), the risks

from these units absent the five foot buffer between the base a nd uppermost aquifer being promulgated today far outweigh the costs of requiring surface impoundments to close or retrofit.65



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 76 

### Organization 1 

### : Kentucky Department for Environmental Protection


### Commenter 1 : R. Br uce Scott Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Based only on proposed Subtitle D siting restrictions, Kentucky may lose one site: TVA

Shawnee. Th e grandfathering of existing sites, with additional safeguards to resist earthquake damage or make repairs afterwards, would help alleviate the situation at that disposal facility. The owner is converting the surface impoundment to a landfill, so the only site restriction that would apply under the Subtitle D option is the stability and floodplain requirements. TVA must already have a floodplain permit, leaving stability as the main, but not insurmountable, issue.

Response: EPA disagrees with the commenter’s suggestion to exempt (‘grandfather’) existing CCR surface impoundments from requirements of this final rule. The Agency believes the impacts resulting from the fa ilure of CCR units from seismic instability are of far mo re concern than any disposal capacity concerns resulting from the closure of existing CCR disposal units in fault zones or seismic impact zones.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 35 

### Organization 1 

### : Duke Energy


### Commenter 1 : Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: It would be problematic if Duke Energy were required to retroactively comply with all of the location restrictions or close surface impoundments and landfills, leading to the significant loss of storage capacity.

Response: T he factual record, as extensi vely discussed in the preamble to the proposal to this rule, supports the need for all of the location standards for existing CCR surface impoundments imposed by this rule. T he Agency is finalizing as proposed the unstable area location restriction

for exi sting CCR landfills because the record clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) have and in all likelihood would continue, in the absence of the restrictions in the final rule, to result in damag e cases where constituents from CCR are released affecting both groundwater and surface waters. For most location restrictions facilities need to either demonstrate that the surface impoundment meets the performance

standard that serves as the alternative to the prohibition, retrofit the unit so that it can meet the66

performance standard, or close. EPA believes that many facilities will be able to make the requisite demonstrations with the location restrictions. Moreover, if a CCR surface impoundment does have to close due to a lack of disposal capacity, the facility may be eligible, in certain circumstances, for an extension of time to find additional capacity before it must begin

closure of the unit.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 16 

### Organization 1 

### : Dominion Resources Services, Inc.


### Commenter 1 : Lisa J. Keck on behalf of Pamela Faggert Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4. 3 4.4.4.4 5.6.4 

### Comment Excerpt Text: We are not aware of structural stability issues directly caused by the placement of CCR surface impoundments in wetlands, fault areas, or seismic impact areas, or in locations less than two feet

above the natural wate r table. EPA asserts that the risks associated with impoundments are greater than those with landfills, and cites the TVA Kingston release as an example of the environmental consequences of a "catastrophic collapse" of a CCR surface impoundment. ld. At

351 99. These types of assertions do not constitute the type of evidence necessary to impose all the location restrictions on existing CCR surface impoundments. In fact, we do not believe that EPA can compile the evidence necessary to support these requirement s. EPA has been conducting comprehensive structural integrity assessments of utility CCR surface impoundments across the country over the last year and a half since the TVA release. The results of EPA's investigation have not, to date, identified any CCR s urface impoundments that present the imminent threat of a catastrophic release similar to that which occurred at TVA's Kingston facility (EPA Coal Combustion Residuals Impoundment Assessment Reports, available online at: http://www.epa.gov/epawaste/nonhaz/ industrial/special/fossil/surveys2lindex.htm). Specifically, EPA's contractors conducting the structural assessments rated the impoundments as "satisfactory", "fair", "poor", or "unsatisfactory" terms commonly used in the field of dam safety.

EPA states th at "expert experience has shown that only impoundments rated as "unsatisfactory" pose immediate safety threats." Id. Of the 120 CCR surface impoundments evaluated thus far, none of the impoundments received an "unsatisfactory" rating. Id. Furthermore, as E PA correctly points out, even those impoundments that received a "fair" or "poor" rating may have been structurally sound but did not receive a "satisfactory" rating based solely on lack of information. Therefore, there is no factual basis to assert that e xisting CCR surface impoundments pose the level of risks necessary to require closure of the impoundments or to justify the imposition of all the location restrictions on these units. In fact. the evidence clearly demonstrates that such

restrictions are no t warranted.

Response: EPA disagrees with the commenter’s claim that the results of EPA’s structural integrity assessments show that the imposition of location requirements on existing units are not appropriate or warranted. The risks associated with t he catastrophic failure of a CCR surface impoundment, while significant, are not the only risks associated with these disposal units, and did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real67

and significant pot ential for these units to contaminate groundwater and surface water sources of drinking water. Moreover, the structural integrity assessments demonstrated that in the absence of regulatory oversight, serious risks to human health and the environment can a rise.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07791

- 9 

### Organization 1 

### : Georgia Department of Natural Resources (GAEPD)


### Commenter 1 : Jim Brown for Mark Smith Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1 4.4.4.3 4.4.4.4 4.4.4.5 4.4.4.6 

### Comment Excerpt Text: Siting criteria include: requirements if siting in a 100

- year floodplain [391

- 3

- 4

- .05(1)(d)]; restrictions on siting in wetlands [391

- 3

- 4

- .05(1)(e)]; restrictions on siting " ... within 200 feet (60 meters) of a fault that has had displacement in Holocene time ... " [391

- 3

- 4

- .05(1)(f)]; restrictions on siting in " ... seismic impact zones ... " [391

- 3

- 4

- .05(1)(g)]; and restrictions on siting in " ... u nstable areas ... " [391

- 3

- 4

- .05(1)(h)]. These requirements are virtually identical to the proposed 40CFR257.60

- 64.

Response: EPA appreciates receiving this information on siting criteria in State of Georgia regulations.



### Comment Number: EPA

- HQ

- RCRA

- 200 9

- 0640

- 08247

- 5 

### Organization 1 

### : Tucson Electric Power Company


### Commenter 1 : Erik Bakken Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

EPA SHOULD NOT APPLY LOCATION RESTRICTIONS TO EXISTING SURFACE

IMPOUNDMENT OR LANDFILLS New and existing CCR surface impoundments and landfills could not be located in floodplains (a requirement that is already in effect) or unstable areas. In addition, n ew surface impoundments and new landfills could not be located in wetlands, fault areas, or seismic impact zones and must be located at least two feet above the natural water table. EPA does not propose subjecting existing CCR landfills to the full range o f location restrictions because EPA reasons that such units are structurally less vulnerable than impoundments and that there would be a significant disposal capacity shortfalls if existing CCR landfills located in these restricted areas

– i.e.

, wetlands, fault areas or seismic impact areas

– had to close.

TEP agrees with EPA that existing CCR landfills should not be subject to these additional68

location restrictions and agrees with EPA that subjecting them to such controls would cause a significant decrea se in disposal capacity. It would also require sites to purchase new lands for landfill development, and to determine appropriate transportation for significant volumes of

CCRs.

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply location restrictions to existing CCR surface impoundments or landfills. As discussed extensively in the preambles to the proposal and final rule, the factual record supports the need for all of the location standards imposed by today's rule. Absent the location restrictions being promulgated, the risk of impacts to human health and the environment from the rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas would exceed acceptable levels . Moreover, EPA believes that many facilities will be able to make the requisite demonstrations with the location re strictions. I f a CCR surface impoundment does have to close due to a lack of disposal capacity, the facility may be eligible, in certain circumstances,

fo r an extension of time to find additional capacity before it must begin closure of the unit.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10497

- 11 

### Organization 1 

### : Seminole Electric Cooperative, Inc. (Seminole)


### Commenter 1 : Carl Eldred Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: d. Application of the Unstable Area Restriction to Existing Facilities Is Inappropriate The subtitle D prime option provides that owners or operators of new or existing CCR landfills and surface impoundments “located in an unstable area must demonstrate that engineering measures have been incorporated into the landfill, surface impoundment, or lateral expansion design to ensure that the integrity of the structural components of the landfill or surface impoundment will not be disrupted.” 75 Fed. Reg. 35242 (proposed 40 C.F.R. § 257.64). Furthermore, the demonstration must be certified by an independent registered profess ional. Id. If a facility is unable to make this demonstration, the landfill or surface impoundment must close within five (5) years and conduct post

– closure activities. Id. at 35243 (proposed 40 C.F.R. § 257.65).

An unstable area is defined as “a location that is susceptible to natural or human induced events or forces capable of impairing the integrity of some or all of the CCR landfill or surface impoundment...structural components responsible for preventing releases” and includes “karst

terrains.” Id. at 3 5243 (proposed 40 C.F.R. § 257.65). In the preamble to the Proposed Rules, EPA stated that it intends to include “only those karst terraces in which rapid subsidence and sinkhole development have been a common occurrence in recent geologic time.” 75 Fed. R eg. 35201. EPA also cited to a USGS map entitled “Engineering Aspects of Karst,” published in 1994 (“Karst Map”), which EPA claims shows many of the karst areas in the United States. Id. Notably, the map identifies approximately one third of Florida (prima rily central Florida) as an

area in which extensive historical subsidence has occurred.69

The subtitle D prime option subjects all new CCR landfills and surface impoundments to the existing MSWLF location restrictions, which include wetlands, unstable areas, fault areas and seismic areas. 75 Fed Reg 35241

- 42 (proposed 40 C.F.R §§ 257.61, 257.62, 257.61, 257.64). Additionally, the floodplain restriction set forth in 40 C.F.R. 257.3

- 1 is also applicable. 75 Fed Reg 35240 (proposed 40 C.F.R § 257.40). However, o nly the unstable area and floodplain restrictions would be applied to existing CCR landfills and surface impoundments. EPA stated that the wetland, fault area and seismic impact area restrictions should not be applied to existing

CCR landfills and surface impoundments in such areas because they may be forced to close and that this “could result in a serious reduction of CCR landfill capacity in those areas.” [Footnote 10: Seminole agrees that the wetland location restriction should not be applied to existin g CCR landfills or surface impoundments.] 75 Fed. Reg. 35198. There is no reason to believe that the application of the unstable area restriction to existing CCR landfills and surface impoundments in Florida would not have the same impact. The Karst Map

ci ted by EPA identifies central Florida, where the majority of Florida’s CCR landfills are located, as an area in which extensive historical subsidence has occurred. On the map, only Missouri is identified as having a similar area. Given the concentration of CCR landfills and surface impoundments in central Florida, the application of the unstable area restriction could have a significant impact on the management of CCRs and may substantially reduce the disposal capacity in Florida. The unstable area restrict ion, therefore, also should not be applied to existing

landfills. EPA attempted to justify the application of the unstable area restriction to existing CCR landfills and surface impoundments on its belief that impacts caused by the “rapid and catastrophic destruction” of CCR landfills in such areas outweighs any disposal capacity concerns. Id. EPA did not, however, provide any explanation as to why it believes a sinkhole in an unstable area would cause more “rapid” or “catastrophic” destruction of a CCR lan dfill than an earthquake in a seismic area. The distinction, therefore, is arbitrary and capricious. See State Farm, at 43 (holding that agencies “must examine the relevant data and articulate a satisfactory explanation for its action, including a “rationa l connection between the facts found and the choice made”)(internal quotations omitted). The subtitle D prime option does provide existing facilities with the opportunity to make a demonstration that the integrity of the CCR landfill or surface impoundment will not be disrupted. Such demonstrations, however, would be extremely difficult given the fact that the landfill would already have been constructed and an engineering or subsurface investigation would not be possible without disturbing the integrity of the landfill. Additionally, it is unclear what engineering measures would be deemed sufficient “to ensure that the integrity of the structural components of the landfill or surface impoundment will not be disrupted.” 75 Fed. Reg. 35242 (proposed 40 C.F.R. § 257.64). Seminole has already demonstrated to FDEP that the subsurface will provide support for the CCR landfill. Pursuant to its conditions of certification, Seminole was required to provide adequate geophysical testing in accordance with the Florida’s Solid Waste Management Facilities Rule, Chapter 62

- 701, F.A.C. See Final Order, XII.11 Specifically, Rule 62

- 701.410, F.A.C. provides that a hydrogeological and geotechnical investigation must be conducted by or under a professional engineer with relevant experience. Seminole performed this investigation and provided the information to FDEP prior to the construction of the CCR landfill. Seminole also performed an investigation for its lateral build out, and is currently awaiting the issuance of

its constru ction approval. Consequently, Seminole should not have to obtain additional70

certification from a third party professional engineer for its existing CCR landfill or its build out. In light of the information already submitted and the approvals obtained, add itional certification is unwarranted and unnecessary

Response: EPA disagrees with the commenter’s assertion that application of location restrictions to existing CCR disposal facilities is inappropriate. T he Agency is finalizing, as proposed, the unstable area location restriction for existing CCR landfills because the record clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) have and in all likelihood would continue, in the absence of the restrict ions in the final rule, to result in damage cases where constituents from CCR are released affecting both groundwater and surface waters. As the Agency stated in the proposed rule, the impacts resulting from the failure

of CCR units from location instabili ty are of far more concern than any disposal capacity concerns resulting from the closure of existing CCR disposal units in unstable areas.

The damage cases associated with subsidence and collapse of CCR units in karst areas illustrate

the vulnerabilities associated with CCR units in unstable areas , and document the relevant data behind the Agency’s decision to impose restrictions on CCR disposal units, including existing CCR landfills, located in unstable areas, particularly those in karst areas . For exa mple, in 2002

a 4

- acre sinkhole collapsed under a 250 acre ash pond in Cartersville, GA. Over a 3 day period 2.2 million gallons of ash pond effluent and 1.87 million pounds of ash was discharged from this sinkhole to a tributary of the Etowah River above Rome, GA’s drinking water intake. Samples collected within the ash footprint in the tributary indicate that concentration of certain metals (arsenic, cadmium, chromium, copper, lead, mercury, and nickel) exceeded EPA Region IV ecological sediment screening values indicating a potential for ecological affects to aquatic life. Sediment concentrations of arsenic were measured at 14ppm dry weight, a level that is over 5 times the toxic threshold. Biological sampling after the event indicated that benthic organ isms in the tributary and ash deposition zone were either killed by contaminants or physically smothered. The company has since taken steps to grout and fill the sinkhole, although karst geology conditions underlying the surface impoundment remain. Ash w as removed from the tributary bottom. Monetized damages from the release have been estimated at $6.1 million .In another damage case at a generating facility in Gallatin, TN, three unlined large capacity ash management areas (two active impoundments, one inactive ash disposal area; total area is ~500 acres, with a combined storage capacity of 15 million cu yds) are located on the bank of the Cumberland River, which is common municipal water supply source in the area, including for the Gallatin Water Depart ment, which is located just over a mile downstream. Although some of the site area is underlain by alluvium, the remainder is underlain by soft soluble limestone bedrock or its clay weathering residuum. Karst bedrock and sinkhole activity is present plant

wide and has been noted in a facility assessment report as a concern. Sinkholes were identified during the 2006 expansion of a fly ash pond, and in 2010, a small sinkhole appeared nearby a

saddle dike. There is also historical documentation in annual re ports from late 1970’s that mention uncontrolled leakage into sinkholes associated with the bottom ash pond complex. On

site groundwater for the inactive ash disposal area is monitored by the facility, and results in

2008 and 2009 showed on

- site exceedance s of groundwater protection standards for beryllium, cadmium, nickel, and vanadium. EPA believes karst subsurface conditions have not been adequately characterized at this facility. The active ash impoundments remain unlined, although the facility assess ment report has recommended consideration of retrofitting the active ponds with liners as part of a long

- term strategy to address risks from karst. In developing this damage71

case the Agency found no data available for off

- site groundwater nearby this faci lity and groundwater quality remains a concern.

The Agency disagrees with the commenter’s claim that an engineering or subsurface investigation would not be possible without disturbing the integrity of the landfill. Geophysical technique s utilizing ground

- penetrating radar or seismic refraction are capable of detecting subsurface anomalies, without disturbing landfill integrity, but these should be applied and interpreted by a qualified professional engineer or geophysicist. Where paleosinks are suspected,

in

- situ geotechnical techniques (e.g., electric piezometer) should be employed to detect subtle downward hydraulic gradients. Only w here feasible, should subsurface drilling be employed to verify the results of geophysical investigations.

EPA appreciat es the commenter’s claim that state agencies have conducted oversight of pre

construction si ting of CCR landfills

. And i t should not be an additional burden to use this same

information to support compliance with the federal location requirement. However, the Agency has not drawn any conclusions on the adequacy of state programs. In the interim, this final rule imposes minimum federal criteria, including location standards, with which CCR landfills and CCR surface impoundments must comply. As sta ted in the preamble to this final rule, these regulations exist independent of any applicable state criteria, and do not constrain or direct state action. Facilities must, therefore, comply with both federal and state criteria simultaneously.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10498

- 16 

### Organization 1 

### : Florida Electronic Power Coordinating Group, Inc. (FCG)


### Commenter 1 : Carl Eldred Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: d. Application of the Unstable Area Restriction to Existing Facilities Is Inappropriate

i. A Large Section of Florida May be Classified an Unstable Area as Defined

FDEP has many years experience permitting solid wast e disposal facilities in karst terrains. As part of the power plant certification process, FDEP has typically required geophysical testing to be performed for each CCR landfill or surface impoundment in accordance with its MSWLF regulations. In light of th is existing process in Florida, and the difficulties inherent in trying to certify an existing facility, such certification is unwarranted.

Response: EPA appreciates the work of Florida state authorities in permitting solid waste disposal facilities in ka rst terrains. However, the Agency has not drawn any conclusions on the adequacy of state programs. In the interim, this final rule imposes minimum federal criteria, including location standards, with which CCR landfills and CCR surface impoundments must

c omply. As stated in the preamble to this final rule, these regulations exist independent of any72

applicable state criteria, and do not constrain or direct state action. Facilities must, therefore, comply with both federal and state criteria simultaneously

.

Section 4.4.4.3

- EPA seeks comment and additional info regarding number of existing CCR LFs that are located in wetlands (35198); including any comments about EPA is not proposing closure of existing CCR LFs in wetlands Total Number of Submissions: 4 Total Number of Comments: 4



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 3 

### Organization 1 

### : We Energies


### Commenter 1 : Art Covi Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: COMMENT: All three of our operating landfills in Southeast Wisconsin are sited on parcels containing at least some wetlands. Additionally, parcels of land in Southeast Wisconsin that are large enough to site a landfill and contain no wetlands are rare. We expect that any new CCR

landfills sited in Southeast Wisconsin will result in wetland encroachments with associated mitigation measures required. Wetlands on landfill properties are already regulated under the

Clean Wa ter Act and we believe that is the appropriate regulatory jurisdiction.

Response: In support of the provisions finalized under RCRA subtitle D in this rule, EPA is citing several damage cases, including 30 cases of “proven” damage to the environment that involve aquatic disposal of CCRs, 14 of which involve impacts to wetlands from release of CCRs. In addition, other federal laws may be applicable in siting a CCR disposal unit in a wetland. These include: Sections 401, 402, and 404 of the Clean Water Act ; the Rivers and Harbors Act of 1989; the National Environmental Policy Act; the Migratory Bird Conservation Act; the Fish and Wildlife Coordination Act; the Coastal Zone Management Act; the Wild and Scenic Rivers Act; and the National Historic Preservatio n Act. The use of a wetlands location for a CCR disposal unit may also require a permit from the U.S. Army Corps of Engineers. To the extent these are applicable, compliance with these RCRA criteria does not alleviate the need to comply with these other federal requirements, and the owner or operator of the facility remains responsible for ensuring compliance with all applicable Federal and state requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 15 

### Organization 1 

### : Dayton Power & Light Company (DP&L)


### Commenter 1 : JoAnne Rau73

Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.4 

### Comment Excerpt Text: B. There appears to be a confli ct between the preamble text and the proposed regulatory language regarding location restrictions applicable to surface impoundments. In the preamble text, USEPA states that"... the proposed regulations would apply all of the location restrictions to

exist ing surface impoundments, [FN 17: 75 Fed. Reg. at 35198.] (which include restrictions on placement above the natural water table, in wetlands, near fault areas, in seismic impact zones, or in unstable areas). The corresponding regulatory text at proposed 4 0 CFR §257.65 would subject existing surface impoundments only to the floodplain and unstable area location restrictions. DP&L assumes the proposed regulatory text is the actual intended scope of the siting restrictions applicable to surface impoundments

Response: In response to the discrepancies between the preamble language and the regulatory text, EPA admits that indeed an error was made in drafting the proposed regulatory language for the location restrictions as it applies to existing CCR surface impo undments. The regulatory language should have included “all surface impoundments” as opposed to only “new surface impoundments.”



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 16 

### Organization 1 

### : Dominion Resources Services, Inc.


### Commenter 1 : Lisa J. Keck on behalf of Pamela Faggert Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.2 4.4.4.4 5.6.4 

### Comment Excerpt Text: We are not aware of structural stability issues directly caused by the placement of CCR surface impoundments in wetlands, fault areas, or seismic impact areas, or in locations less than two feet

above the natural water table. EPA asserts that the risks ass ociated with impoundments are greater than those with landfills, and cites the TVA Kingston release as an example of the environmental consequences of a "catastrophic collapse" of a CCR surface impoundment. ld. At 35199. These types of assertions do not co nstitute the type of evidence necessary to impose all the location restrictions on existing CCR surface impoundments. In fact, we do not believe that EPA can compile the evidence necessary to support these requirements. EPA has been conducting comprehensiv e structural integrity assessments of utility CCR surface impoundments across the country over the last year and a half since the TVA release. The results of EPA's investigation have not, to date, identified any CCR surface impoundments that present the

im minent threat of a catastrophic release similar to that which occurred at TVA's Kingston facility (EPA Coal Combustion Residuals Impoundment Assessment Reports, available online at: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2linde x.htm). Specifically, EPA's contractors conducting the structural assessments rated the impoundments as74

"satisfactory", "fair", "poor", or "unsatisfactory" terms commonly used in the field of dam safety. EPA states that "expert experience has shown that on ly impoundments rated as "unsatisfactory" pose immediate safety threats." Id. Of the 120 CCR surface impoundments evaluated thus far, none of the impoundments received an "unsatisfactory" rating. Id. Furthermore, as EPA correctly points out, even those imp oundments that received a "fair" or "poor" rating may have been structurally sound but did not receive a "satisfactory" rating based solely on lack of information. Therefore, there is no factual basis to assert that existing CCR surface impoundments pose t he level of risks necessary to require closure of the impoundments or to justify the imposition of all the location restrictions on these units. In fact. the evidence clearly demonstrates that such

restrictions are not warranted.

Response: EPA disagrees with the commenter’s claim that the results of EPA’s structural integrity assessments show that the imposition of location requirements on existing units are not appropriate or warranted. The risks associated with the catastrophic failure of a CCR surfac e impoundment, while significant, are not the only risks associated with these disposal units, and did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real and significant potential for these units to contaminate g roundwater and surface water sources of drinking water. Moreover, the structural integrity assessments demonstrated that in the absence of regulatory oversight, serious risks to human health and the environment can arise.

Section 4.4.4.4

- EPA solicit s comment and additional data/info regarding extent to which existing CCR LFs are currently located in fault areas, including active Holocene fault areas, or in seismic impact areas (35198, 35223); including any comments about EPA is not proposing closure of existing CCR LFs in fault areas or seismic impact areas Total Number of Submissions: 12 Total Number of Comments: 14



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 74 

### Organization 1 

### : Kentucky Department for Environmental Protection


### Commenter 1 : R. Bruce Scott Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Kentucky's regulations do not presently include seismic design standards or requirements for

fault off set for CCR landfills or ash ponds. Moreover, dating displacement along faults, especially those with Quaternary or Holocene displacement, is difficult and requires much work and expense. As a consequence, no site

- specific fault studies have been completed at CCR

facilities in the Commonwealth.

However, TVA Shawnee, located near Paducah, is the most probable site to have Holocene displacement. There is no site

- specific data, though. The Peoria Loess is faulted at the Paducah

Gaseous Diffusion Plant which i s south of the TVA facility. This indicates relatively recent,75

although not unequivocally Holocene faulting, given that the Peoria Loess is approximately 11,500 to 25,000 years old.

Response: EPA appreciates receiving this information on seismic design requirements for CCR disposal units in Kentucky. However, the Agency has not drawn any conclusions on the adequacy of state programs. In the interim, this final rule imposes minimum federal cr iteria, including location standards, with which CCR landfills and CCR surface impoundments must comply. As stated in the preamble to this final rule, these regulations exist independent of any applicable state criteria, and do not constrain or direct stat e action.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 8 

### Organization 1 

### : Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter 1 : Chris M. H obson Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: a. Any Subtitle D Standards Should Allow CCB Disposal Facilities to Account for Stability Issues Associated with Local Geology.

Southern Company observes that a demonstration of safety in light of sitespecific stability issues may require seismic mapping , borings, and other investigations and analysis that will lead to development of greater knowledge and understanding of potential risks at a particular site. We believe it is safer and more effective to analyze and account for site

- specific geological

con ditions than to impose inflexible, centralized, national standards that by their nature do not and cannot account for real world conditions at the actual CCB facility site. Accordingly, any

new standards should allow for a site

- specific demonstration of sa fety rather than imposing rigid

federal standards.

The following comments include specific instances that explain why site

- specific analysis is superior to general, centralized standards, as well as other comments on the particulars of proposed location restrictions.

Seismic impact zones.

EPA proposes to define seismic impact zones as areas having a 10 percent or greater probability that the maximum expected horizontal acceleration in hard rock expressed as a percentage of the earth’s gravitational pu ll (g), will exceed 0.10g in 250 years (10%PE/250y). [Footnote 45: See id. at 35201.] Alternatively, EPA proposes to adopt criteria from the National Earthquake Hazards Reduction Program (“NEHRP”) of the U.S. Geological Survey (“USGS”)

— a ground76

motion prob ability of 2% and a 50

- year time period (2%PE/50y).

The NEHRP/USGS 2%PE/50y standard provides a sufficient margin of safety. [Footnote 46: A preliminary review indicates approximately 10 plants of Southern Company subsidiaries with

CCB facilities in seism ic impact zones. We note with concern the proposal under the Subtitle C option to prohibit CCB facilities in seismic impact zones. See id. at 35181. There is no apparent allowance for design professional certification of safe operation. It is unnecessary a nd unreasonable to use a ceiling of PGA=0.1g as an absolute ceiling to site CCR facility. There are design and analysis methods available to develop/design safe facilities, even with a higher PGA. Further, while Southern Company opposes the use of the MSHA regulations and guidelines as a model for CCB impoundment regulations (Part V.B.3. of these comments), the ceiling of PGA = 0.1g is contrary to existing standards under the MHSA regulations as well as those standards governing nuclear facilities. The MSHA design manual for coal refuse facilities includes specific procedures to evaluate coal refuse facilities that experience shaking well in excess of 0.1g. Further, there is no similar ceiling for the siting of nuclear facilities. Southern Company strongly

o pposes such an restriction.] Based on the recurrence interval, the difference between 2%PE/50y and 10%PE/250y is negligible. The recurrence interval would be 2,375 years for the 10%PE/250y standard and 2,475 years for the 2%PE/50y standard. However, the 2% PE/50y data is more accessible and better maintained. NEHRP/USGS resources for probabilistic ground motions are widely available and regularly updated to reflect advancements in seismic hazard mapping.

If a screening level for the demonstration of seismi c stability such as PGA=0.1g with 2%PE/50y is to be established, then the screening level should be set based on engineering review of embankments damaged by earthquakes or some other engineering study that demonstrates both the safety of structures below the screening limit and the necessity of seismic stability analysis above the screening limit. Moreover, if a screening criteria of PGA=0.1g with 2%PE/50y is established for demonstration of seismic stability, the screening level should provide uniform

pro tection across the United States. First, the screening criteria should incorporate earthquake magnitude. Second, the screening criteria should incorporate the accelerations that result from the actual site conditions. While large embankment dams may be bui lt directly on rock (where the PGA acceleration is applicable), short height CCB facilities tend to be constructed on natural soil that may be 100 or more feet thick, thus amplifying bedrock motion. Third, the screening

criteria should consider the nature of the structure and the frequency of the earthquake vibrations. For instance, a tall ash stack may have a significantly different period than a shallow incised pond. The spectral acceleration used in the 2009 International Building Code, Section 1613, is a good example of how the period of the structure can be incorporated in design

.

Response: As explained is this finalized rule, the Agency believes coal ash disposal is appropriately handled using its Subtitle D authorities. All CCR surface impoundments a nd n ew CCR landfills are prohibited from locations within seismic impact zones unless the owner or operator can demonstrate that all structural components including liners, leachate collection and removal systems, and surface water control systems, can wit hstand the maximum horizontal acceleration in lithified earth material for the site. This is not a ban, but a minimum national performance standard for new CCR landfills and other CCR disposal facilities located in these sensitive areas. Among other bene fits, the finalized provisions are designed to prevent potential

CCR releases from landfills due to seismic shaking. Under today’s finalized rule , a seismic impact77

zone means an area having a 2% or greater probability that the maximum expected horizontal acceleration, expressed as a percentage of the earth’s gravitational pull (g), will exceed 0.10 g in 50 years. Maximum horizontal acceleration in lithified earth material means the maximum expected horizontal acceleration at the ground surface as depicted on a seismic hazard map, with a 98% or greater probability that the acceleration will not be exceeded in 50 years, or the maximum expected horizontal acceleration based on a site

- specific seismic risk assessment. For units located in seismic impact zones, as part of any demonstration, owners and operators should include: (1) a determination of the expected peak ground acceleration from a maximum strength earthquake that could occur in the area; (2) a determination of the site

- specific seismic hazards

such a s soil settlement; and (3) a facility design that is capable of withstanding the peak ground acceleration. Seismic designs broadly should include a response analysis to quantify the demands of earthquake motion on facility structures (landfills, surface i mpoundments, liners, covers, leachate collection systems, surface water handling systems), liquefaction analyses of both waste and foundation soils to evaluate stability under seismic loading, and a slope stability and deformation analyses.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 15 

### Organization 1 

### : Dayton Power & Light Company (DP&L)


### Commenter 1 : JoAnne Rau Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Secti ons: 4.4.4.3 

### Comment Excerpt Text: B. There appears to be a conflict between the preamble text and the proposed regulatory language regarding location restrictions applicable to surface impoundments. In the preamble text, USEPA states that"... the propose d regulations would apply all of the location restrictions to existing surface impoundments, [FN 17: 75 Fed. Reg. at 35198.] (which include restrictions on placement above the natural water table, in wetlands, near fault areas, in seismic impact zones, or in unstable areas). The corresponding regulatory text at proposed 40 CFR §257.65 would subject existing surface impoundments only to the floodplain and unstable area location restrictions. DP&L assumes the proposed regulatory text is the actual intended sc ope of the siting restrictions applicable to surface impoundments

Response: In response to the discrepancies between the preamble language and the regulatory text, EPA admits that indeed an error was made in drafting the proposed regulatory language for the location restrictions as it applies to existing CCR surface impoundments. The regulatory language should have included “all surface impoundments” as opposed to only “new surface impoundments.”



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 37 

### Organization 1 

### : Duke Energy


### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company78

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The seismic zone location restriction is one example of a restriction that could affect many existing facilities. Most of Duke Energy’s stations in the state of Indiana are within a seismic zone. Without the ability to demonstrate that the facility is safe, Duke Energy would be required to transport CCR a significant distance off

- site for disposal. EPA therefore must provide a mechanism that allows an electric utility to demonstrate that it has addressed any location/siting concerns through engineering controls or other best management practices if such demonstration had not already been made prior to construction.

Re sponse: Under this rule, n ew CCR landfills and all CCR surface impoundments are prohibited from locations within seismic impact zones unless the owner or operator can demonstrate that all structural components including liners, leachate collection and rem oval systems, and surface water control systems, can withstand the maximum horizontal acceleration in lithified earth material for the site. This is not a ban, but a minimum national performance standard for new CCR landfills and other CCR disposal facili ties located in these sensitive areas.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06446

- 11 

### Organization 1 

### : Hoosier Energy Rural Electric Cooperative (REC), Inc.


### Commenter 1 : Michalene Reilly Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: B. Proposed seismic location restrictions

Estimates have shown that approximately 148 coal

- fired plants fall within the proposed exclusionary areas. Based on the propos ed criteria, nearly 30% of existing coal

- fired regulatory impact analysis (RIA) plants would not be able to construct new disposal facilities, unless they prove the facility can withstand the design seismic event. Although there is some reason to have

conc erns with facilities that contain large quantities of liquids or other materials that flow, CCR landfills are basically large blocks of low permeability materials that are unlikely to cause any offsite effects even in the event of a major earthquake. Hoosi er Energy has not seen any evidence that the tremendous cost of hauling large volumes of CCRs offsite meets any cost benefit criteria. This is especially true when you consider the idea that hundreds of trucks on the road from power plants present a much h igher risk of exposure to the citizenry because of accidents, than does a single on

- site location within the borders of the power plant facility.

Response: EPA disagrees with the commenter’s assertion that CCR landfills are unlikely to cause any offsite e ffects in the event of a major earthquake, and the commenter has provided no information to support the assertion. As stated in the preamble to this final rule, s tresses79

produced during earthquake motion can cause serious damage to landfill integrity via seismically induced ground failure and associated rupture of liner systems and subsequent damage to

le achate collection systems. I f the unit is unlined, seismic motion could disrupt landfill caps and foundation soils that impede migration of percolating w ater. Potential damage to CCR disposal units resulting from structures located across a fault include surface breakage, cracks and fissures between fill and confining slopes, slope failure via landslides, liquefaction

- induced lateral spreading and settlem ent of the pile, disruption of surface water and drainage control systems, and rupture of leachate collection systems. In impoundments, for example, interior dike failure and leakage, and rupture of multilayer liner systems would also be of concern. Fail ure of the leachate collection system may prevent removal of generated leachate, allowing it to pond on the liner. If the liner system is ruptured, this may create a pathway for leachate to migrate into and contaminate the uppermost aquifer. In addition to the potential damage to leachate collection and liner systems, the integrity of the landfill slopes could also be impaired by fault rupture, potentially exposing coal combustion residuals to surface runoff. The best protection is to avoid locating new C CR landfills and all CCR surface impoundments across faults and fault zones subject to displacement.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 16 

### Organization 1 

### : Dominion Resources Services, Inc.


### Commenter 1 : Lisa J. Keck on behalf of Pamela Faggert Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.2 4.4.4.3 5.6.4 

### Comment Excerpt Text: We are not aware of structural stability issues directly cause d by the placement of CCR surface impoundments in wetlands, fault areas, or seismic impact areas, or in locations less than two feet above the natural water table. EPA asserts that the risks associated with impoundments are greater than those with landfill s, and cites the TVA Kingston release as an example of the environmental consequences of a "catastrophic collapse" of a CCR surface impoundment. ld. At 35199. These types of assertions do not constitute the type of evidence necessary to impose all

the loca tion restrictions on existing CCR surface impoundments. In fact, we do not believe that EPA can compile the evidence necessary to support these requirements. EPA has been conducting comprehensive structural integrity assessments of utility CCR surface impo undments across the country over the last year and a half since the TVA release. The results of EPA's investigation have not, to date, identified any CCR surface impoundments that present the imminent threat of a catastrophic release similar to that which occurred at TVA's Kingston facility (EPA Coal Combustion Residuals Impoundment Assessment Reports, available online at: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2lindex.htm). Specifically, EPA's contractors conducting the structu ral assessments rated the impoundments as "satisfactory", "fair", "poor", or "unsatisfactory" terms commonly used in the field of dam safety. EPA states that "expert experience has shown that only impoundments rated as "unsatisfactory" pose immediate safet y threats." Id. Of the 120 CCR surface impoundments evaluated thus far,80

none of the impoundments received an "unsatisfactory" rating. Id. Furthermore, as EPA correctly points out, even those impoundments that received a "fair" or "poor" rating may have bee n structurally sound but did not receive a "satisfactory" rating based solely on lack of information. Therefore, there is no factual basis to assert that existing CCR surface impoundments pose the level of risks necessary to require closure of the impoundm ents or to justify the imposition of all the location restrictions on these units. In fact. the evidence clearly demonstrates that such

restrictions are not warranted.

Response: EPA disagrees with the commenter’s claim that the results of EPA’s structural integrity assessments show that the imposition of location requirements on existing units are not appropriate or warranted. The risks associated with the catastrophic failure of a C CR surface impoundment, while significant, are not the only risks associated with these disposal units, and did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real and significant potential for these units to cont aminate groundwater and surface water sources of drinking water. Moreover, the structural integrity assessments demonstrated that in the absence of regulatory oversight, serious risks to human health and the environment can arise.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 34 

### Organization 1 

### : Avista Corp.


### Commenter 1 : Darrell Soyars Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

Avista is not aware of structural stability issues directly caused by the placement of surface impoundments in wetlands, fault areas, or seismic impact areas of less than two feet above the natural water table. More importantly, apparently neither is EPA. The Ag ency has not assessed the risks associated with the placement of existing impoundments in these areas. EPA simply asserts that the risks associated with impoundments are greater than those associated with landfills and cites to the TVA spill as an example of the environmental consequences of a “catastrophic collapse” of a CCR impoundment. Id . at 35199. These general assertions, however, do not constitute the type of record evidence necessary to impose such sweeping requirements on all existing CCR surface i mpoundments. The Agency must conduct a detailed analysis of CCR surface impoundments located in these restricted locations and demonstrate, based on this analysis, that there are, in fact, increased risks from these impoundments to justify such a significa nt departure from how the Agency addressed and regulated MSWLFs.

Response: EPA disagrees with the commenter's assertion that in order to apply national minimum standards to existing CCR surface impoundments, specific risks must first be

demonstrated at e ach location based upon an evaluation from each individual unit. First, it is well established that an agency may regulate a class of similarly situated [entities] through rulemaking, rather than on the basis of an individualized assessment of every entit y that will be subject to the rule. And indeed, Congress specifically directed EPA to proceed by rulemaking to establish minimum national standards under RCRA sections 1008(a) and 4004(a). Second,81

section 4004(a) does not require a demonstration of actua l impacts, merely that these units present an unacceptable risk of harm. Thus, it is sufficient for EPA to establish a factual record demonstrating that the specific location restrictions in the final rule are necessary for CCR disposal units (landfills and surface impoundments), as a class, to ensure that there will be no reasonable probability of adverse effects on health or the environment. In this case, the factual

recor d, as extensively discussed in the preamble to the proposal to this rule, support s the need for all of the location standards for existing CCR surface impoundments imposed by this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 35 

### Organization 1 

### : Avista Corp.


### Commenter 1 : Darrell Soyars Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.1 5.6.4 

### Comment Excerpt Text: Avista does not believe that EPA can compile the record evidence necessary to support such a regulation. In fac t, over the last year and a half since the TVA ash release, EPA has been conducting comprehensive structural integrity assessments of utility CCR impoundments across the country. The results of EPA’s investigation have not, to date, identified any CCR impo undment that presents the imminent threat of a catastrophic release similar to that which occurred at TVA's Kingston facility. EPA Coal Combustion Residuals Impoundment Assessment Reports (available online at http://www.epa.gov/epawaste/nonhaz/industrial/s pecial/ fossil/ surveys2/index.htm) (current as of Nov. 3, 2010). Specifically, EPA’s structural assessments rated the impoundments as “satisfactory,” “fair,” “poor,” or “unsatisfactory”

– terms commonly used in the field of dam safety. EPA explains that, “[e]xpert experience has shown that only impoundments rated as “unsatisfactory” pose immediate safety threats.” Id . Of the 120 CCR impoundments evaluated thus far, none of the impoundments received an “unsatisfactory” rating.

Id . And, as EPA correctly poin ts out, even those impoundments that received a “fair” or “poor” rating may have been found by the inspectors to be structurally sound, but did not receive a “satisfactory” rating based solely on lack of information. Therefore, there is no factual basis to assert that existing CCR impoundments pose the type of risks of catastrophic failure justifying the imposition of all the location restrictions on existing units; indeed, the record evidence makes clear that such restrictions are not appropriate or warran ted.

Response: EPA disagrees with the commenter’s claim that the results of EPA’s structural integrity assessments show that the imposition of location requirements on existing units are not appropriate or warranted. The risks associated with the catastr ophic failure of a CCR surface impoundment, while significant, are not the only risks associated with these disposal units, and did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real and significant potential for these units to contaminate groundwater and surface water sources of drinking water. Moreover, the structural integrity assessments demonstrated that in the absence82

of regulatory oversight, serious risks to human health and the environment can arise.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 34 

### Organization 1 

### : Nebraska Department of Environmental Quality (NDEQ)


### Commenter 1 : David B. Haldeman Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: NDEQ’s regulations use the term “fossil fuel combustion ash” which is equivalent to EPA’s term of CCR. NDEQ regulations do not have locational criteria for “fault areas” or “seismic impact zones” because in development of its regulations those types of criteria were not identified to be prevalent in Nebraska and therefore not relevant to the permitting process.

Response: EPA appreciates receiving this information on the locational criteria in Nebraska DEQ regulations.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 25 

### Organization 1 

### : Xcel Energy


### Commenter 1 : Terry Coss Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.7 

### Comment Excerpt Text:

Seismic Zones and Fault Lines: Identification of geologic hazards such as seismic zones and fault lines is, in our experience, already a requirement of state regulations applicable to solid waste disposal facilities. The proximity of any such features to a proposed or existing facility would be a consideration in the siting and design of a new facility and would require the applic ation of appropriate mitigating engineering solutions at existing facilities. It would also seem that EPA would have sufficient information available from the 2009 CCR Surface Impoundment ICR and the subsequent on

- site structural integrity and safety asses sments to determine whether this is an issue that merits regulatory concern.

Response: In this rule EPA is establishing minimum national criteria that apply to facilities that manage CCRs. As explained extensively in the preamble to the proposal, the Ag ency has the factual information to support new location restrictions. Under the present regulatory structure, federal requirements apply directly to facilities, and operate independent of state involvement.83

Therefore, the facility owner and operator must simultaneously comply with both existing state and federal provisions. As explained in the preamble, EPA believes the additional federal protections are necessary to protect health and the environment based on the information that is currently available. States are free to impose requirements that are more stringent than the requirements of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10494

- 17 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.3.1 

### Comment Excerpt Text: Based on the first proposed seismic impact zone definition, a site’s maximum horizontal ground

acc eleration for an occurrence interval of 10% in 250 years cannot exceed 0.1g (0.981m/s2). If the horizontal ground acceleration for that site at the specified interval exceeds 0.1g then, according to this criterion, a new disposal facility cannot be constru cted at that location, unless the facility is designed to resist the maximum horizontal acceleration.

Figure 1 illustrates the coal

- fired plants that will be impacted by the proposed seismic impact zone criteria. Note that in the figure the seismic impact zone is defined as the area exceeding the horizontal ground acceleration criteria for an occurrence interval of 2% in 50 years, rather than 10% in 250 years. These two occurrence intervals are statistically very similar; the 2% in 50 years interval was us ed because the 10%/250

- year interval data are dated and are no longer supported by the USGS. As shown on the figure, approximately 148 coal

- fired plants fall within the proposed exclusionary areas. Based on the proposed criteria, nearly 30% of existing coa l

fired plants listed in the Regulatory Impact Analysis would not be able to construct new disposal facilities, unless they prove the facility can withstand the design seismic event.

The alternative approach defines a second method of applying a seismic r elated standard which is to demonstrate stability through the use of the maximum horizontal ground acceleration occurring at a site for the suggested interval of 2% in 50 years. Using the suggested 2% in 50 year occurrence interval and the USGS seismic dat a, the maximum horizontal ground acceleration expected for a given site can be found. Figure 2 illustrates the locations of the coal

fired plants and the variability of ground accelerations for the 2% in 50 year interval.

However, if the stability standar d is not met, either the facility cannot be built, or, stabilizing modifications must be incorporated to the facility’s design. Potential stabilizing modifications may include constructing at shallower slopes, mass removal and replacement of unstable soils under the facility footprint, deep dynamic compaction, and deep soil mixing. Since typical CCR facilities and impoundments have large footprint areas, many of the stabilizing improvement technologies are likely to have significant cost.84

[See original att achment for the map of PROPOSED SEISMIC IMPACT ZONES]

[See original attachment for the map of SEISMIC HAZARD MAP]

Response: As explained is this finalized rule , a ll CCR surface impoundments and new CCR landfills are prohibited from locations within seismic impact zones unless the owner or operator can demonstrate that all structural components including liners, leachate collection and removal systems, and surface w ater control systems, can withstand the maximum horizontal acceleration in lithified earth material for the site. This is not a ban, but a minimum national performance standard for new CCR landfills and other CCR disposal facilities located in these sensi tive areas. Among other benefits, the finalized provisions are designed to prevent potential CCR releases from landfills due to seismic shaking. Under today’s finalized rule, a seismic impact zone means an area having a 2% or greater probability that the maximum expected horizontal acceleration, expressed as a percentage of the earth’s gravitational pull (g), will exceed 0.10 g in 50 years. Maximum horizontal acceleration in lithified earth material means the maximum expected

horizontal acceleration at th e ground surface as depicted on a seismic hazard map, with a 98% or greater probability that the acceleration will not be exceeded in 50 years, or the maximum expected horizontal acceleration based on a site

- specific seismic risk assessment. For units

loca ted in seismic impact zones, as part of any demonstration, owners and operators should include: (1) a determination of the expected peak ground acceleration from a maximum strength earthquake that could occur in the area; (2) a determination of the site

- sp ecific seismic hazards such as soil settlement; and (3) a facility design that is capable of withstanding the peak ground acceleration. Seismic designs broadly should include a response analysis to quantify the demands of earthquake motion on facility str uctures (landfills, surface impoundments, liners, covers, leachate collection systems, surface water handling systems), liquefaction analyses of both waste and foundation soils to evaluate stability under seismic loading, and a slope stability

and deformat ion analyses.

Section 4.4.4.5

- EPA seeks comment and data on whether 200

- foot buffer zone from faults should be greater for CCR SIs, especially from faults that have experienced displacement during Holocene Epoch (35200, 35223) Total Number of Submis sions: 4 Total Number of Comments: 4



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 75 

### Organization 1 

### : Kentucky Department for Environmental Protection


### Commenter 1 : R. Bruce Scott Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

A 200

- foot buffer from a fault that displays Holocene displacement is not necessarily protective85

from a geological standpoint for two reasons: 1) The assumption that a fault that displays Holocene displacement is capable of future movement and one that does not display Holocene displacement is not capable of future movement is not easily defensible. 2) Faults are not simple, easily defined planes; rather, they are complex zones of fracturin g and displacement. If any component of a particular fault zone exhibits Quaternary or Holocene displacement, the entire fault zone should be considered capable of displacement in the future. Such seismic issues should be taken into consideration regarding the construction of sensitive facilities.

Response: EPA agrees with the commenter’s statement that faults are not easily defined planes, but complex zones of fracture and displacement , and in the preamble to this final rule the Agency has clarified its definition of fault to incorporate new technical information. The Agency has also redefined the setback distance to 60 meters (200 feet) from the outermost damage zone of a Holocene fault. EPA believes this distance will provide an adequate margin of

saf ety to protect the facility from displacements due to surface faulting and any associated damage because 60 meters typically covers the zone of deformation where the ground may be bent or warped as a consequence of fault movement. By including this as a s iting requirement for new units the risk of rupture of the unit, including any liner and leachate collection systems, due to surface faulting will be minimized.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 9 

### Organization 1 

### : Southern Company on behalf of it self and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter 1 : Chris M. Hobson Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task : Examine Context Assigned/Due:



### Comment Excerpt Text:

Fault buffer zones.

EPA is proposing a 200

- foot buffer zone between CCB facilities and faults that have experienced displacement during the Holocene Epoch. [Footnote 47: 75 Fed. Reg. 35128, 35200 (June 21, 2010).] EPA does not explain the basis for requiring a 200

- foot setbac k distance. Southern Company concurs that siting a facility directly on top of an active fault is not advisable. However, we believe that an across

- the

- board, uniform 200

- foot offset distance fails to account for regional and site

- specific variations in th e nature of faulting. Some faults may produce ground motions that are different in nature or more destructive to nearby CCB facilities than others. Given the variations in geology across the United States, EPA should consider site

specific analysis of this issue and allow a qualified design professional to certify safe operation of CCB facilities that are located less than 200 feet from a fault. [Footnote 48: A publication by the USGS entitled Data for Quaternary faults, liquefaction features and possible t ectonic features in the Central and Eastern United States, east of the Rocky Mountains, lists a summary of86

Quaternary faults, none of which occurs within the service territory of Southern Company subsidiaries.]

Response: I n the preamble to this final rule the Agency has clarified its definition of fault to incorporate new technical information. The Agency has also redefined the setback distance to 60 meters (200 feet) from the outermost damage zone of a Holocene fault. The Agency believes it is

best to re strict new CCR landfills and surface impoundments, and all new extensions, to locations no less than 60 meters from the outermost damage zone created by an active fault. EPA believes this distance will provide an adequate margin of safety to protect the f acility from displacements due to surface faulting and any associated damage because 60 meters typically covers the zone of deformation where the ground may be bent or warped as a consequence of

fault movement. Also, in this finalized r ule, a seismic impac t zone has been defined as an area having a 2% or greater probability that the maximum expected horizontal acceleration , expressed as a percentage of the earth’s gravitational pull (g), will exceed 0.10 g in 50 years. Maximum
horizontal acceleration in lit hified earth material means the maximum expected horizontal acceleration at the ground surface as depicted on a seismic hazard map, with a 98% or greater probability that the acceleration will not be exceeded in 50 years, or the maximum expected

horizontal acceleration based on a site

- specific seismic risk assessment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 58 

### Organization 1 

### : Earthjustice et. al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: It is apparent from the Root Cause Analysis of the failure of the TVA Kingston impoundment and aspects of the PPL Martins Creek Basin 1 selenium case that there is a seriously deficient

ap preciation of the peculiar physical properties of coal fly ash in impoundments, the importance of the internal structure of the ash bodies in those impoundments to internal water flows, pressures and stability, and the consequent mechanical fragility of “w et stacks” of coal fly ash. Above grade impoundments are totally dependent on the structural integrity of the dams which restrain them, but those dams are likely under more substantial pressure loads than dams restraining similar heights and volumes of wat er. Above grade impoundments in areas subject to substantive seismic movement or vibration are dangerous in proportion to their ash stack heights. Anytime there is evidence of excessive pressure build up in or around any sampling points or dam structures, the impoundment in question should be immediately taken out of use until pressures can be relieved and provisions made to assure they will not redevelop. Again in the TVA Kingston case disclosed documents clearly showed these conditions arose and were neve r effectively addressed resulting in the catastrophic failure of the impoundment. The dimensions and history of that impoundment indicated that due to the probable internal structure of the ash fill, it may well have been that effective corrective measures would have been beyond economic or technological reach. Similar above ground impoundments in seismically active areas can be87

expected to fail at considerably lower heights than the  ̃65 feet above grade height where the TVA Kingston failure occurred. The 2 00

- foot setback seems inadequate.

Response: EPA agrees that facilities in sensitive areas such as fault areas or seismic impact zones need to be cognizant of conditions that could lead to excessive pressure buildup or otherwise impact structural integri ty of CCR surface impoundments or CCR landfills. In this final rule the Agency has clarified the definition of fault zone to specify a setback distance of 60 meters from the outermost damage zone. A setback distance of 60 meters (200 feet) from the outermost damage zone of a Holocene fault will provide an adequate margin of safety to protect the facility from displacements due to surface faulting and any associated damage because 60 meters typically covers the zone of deformation where the ground may be bent or warped as a consequence of fault movement. By including this as a siting requirement for new units the risk of rupture of the unit, including any liner and leachate collection systems, due to surface faulting

will be minimized. Regardless, existing CCR surface impoundments located in seismic impact zones must make a demonstration, certified by a professional engineer, that all containment structures, including liners, leachate collection syst ems, and surface water control systems, are designed to resist the maximum horizontal acceleration in lithified earth material from a probable earthquake.

Section 4.4.4.6

- EPA solicits comment on extent to which facilities could comply with proposed p erformance standards that facilities must meet in order to site a new LF or SI or a lateral expansion with placement above water table or in wetlands, unstable areas (i.e., poor foundation conditions, areas susceptible to mass movement, karst terraces), fa ult areas, or seismic impact zones (35198, 35223) Total Number of Submissions: 19 Total Number of Comments: 21



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 33 

### Organization 1 

### : Kansas Department of Health and Environment


### Commenter 1 : William L. Bider

Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7 

### Comment Excerpt Text:
Location Restrictions (P. 35241) Rule as proposed

Sec. 257.60 Placement above the natural water table. (a) New CCR landfills and new CCR surface impoundments and lateral expansions must be constructed with a base that is located a minimum of two feet above the upper limit of

the natural water table. (b) For purposes of this section, natural water tab le means the natural level at which water stands in a shallow well open along its length and penetrating the surficial deposits just deeply enough to encounter standing water at the bottom. This level is uninfluenced by groundwater pumping or other enginee red activities.88

For the geological conditions encountered in Kansas, and the location restrictions currently in Kansas solid waste regulations for siting all solid waste landfills, including Subtitle D municipal solid waste landfills, this proposed langua ge is confusing and contradictory. Kansas requests this

section to be modified to read as follows:

Sec. 257.60 Placement above the uppermost aquifer.

New CCR landfills and new CCR surface impoundments and lateral expansions must be

constructed with a bas e that is located a minimum of five feet above the upper limit of the uppermost aquifer as defined in proposed regulation 257.40 and certified by a qualified groundwater scientist, professional geologist, or professional engineer.

Response: Under § 257.60( a) EPA is requiring new CCR landfills, existing and new CCR surface impoundments and all lateral expansions to be constructed with a base that is located no less than 1.52 meters (five feet) above the uppermost aquifer

. In § 257.60(a) the term

u ppermost aquifer has the same definition as under the general provisions of § 257.40: the geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected with this aquifer within the facilit y’s property boundary. This definition includes a shallow, deep, perched, confined or unconfined aquifer, provided it yields usable water. Although EPA originally proposed that all CCR surface impoundments be located ‘....above the upper limit of the natura l water table’, the Agency is today amending this requirement and replacing ‘water table’ with ‘uppermost aquifer’ to make it consistent with the way natural underground water sources are described elsewhere in the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 10 

### Organization 1 

### : Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter 1 : Chris M. Hobson Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Karst and other geological circumstances.

Any number of less

- than

- ideal geological circumstances may be present a t the site of a CCB facility. It is not possible, necessary, or advisable for EPA to issue centralized, prescriptive requirements that seek to identify every potential issue and impose a predetermined federal solution. Rather, the CCB facility owner must u ndertake site

- specific investigations and make professional judgments as to what design and engineering responses may be best suited to89

provide for proper facility performance with an appropriate margin of safety.

Before a Southern Company subsidiary bui lds a new CCB facility, soil and, if present, rock borings are conducted in order to determine the subsurface conditions within the planned footprint of the disposal facility and to determine the engineering parameters of potential backfill

materials. Poor foundation conditions are typically addressed by either removal

- and

replacement, in

- situ soil improvement methods, grouting into rock, or other methods. Southern Company performs extensive studies to avoid active karst areas and has spent up to $1 million per site in such investigations in the past. Again, Southern Company has applied these practices notwithstanding the absence of federal regulatory requirements.

Response: While EPA appreciates the commenter’s assertion that the company has spent

extensiv e resourc es on site investigations, current information suggests these practices are not required in all States nor are they consistent nationwide. As discussed extensively in the preambles to the proposal and this final rule, EPA has establish ed a factual record demonstrating that the specific location restrictions in the final rule are necessary for CCR disposal units (landfills and sur face impoundments), to ensure that there will be no reasonable probability of

adverse effects on health or the environment. These are minimum national performance

standard s for new CCR landfills and other CCR dispo sal facilities located in sensitive areas. For

most location restrictions facilities need to either demonstra te that the CCR disposal unit meets the pe rformance standard that serves as the alternative to the prohibition, retrofit the unit so that it can meet the performance standard, or close.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 11 

### Organization 1 

### : Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter 1 : Chris M. Hobson Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: b. Siting Issues Associated with Wetlands Should Be Addressed Through the Wetlands Program.

Any new CCB disposal facilities, or expansions of existing facilities, must obtain a Clean Water Act (“CWA”) Section 404 per mit if impacts to wetlands or jurisdictional waters are anticipated. The Section 404 process and the associated environmental review pursuant to the National Environmental Policy Act are sufficient to address impacts to wetlands, including consideration

of other reasonable sites and facility configurations, alternatives that may allow avoidance of wetlands, and appropriate mitigation requirements. EPA states that its wetlands location restrictions are “consistent with regulatory provisions currently governi ng the CWA 404 program.” [Footnote 49: 75 Fed. Reg. at 35200.] However, it is more accurate to state that the requirements unnecessarily overlap with the requirements of the wetlands program as well as90

other environmental restrictions such as effluent disc harge limits. Adding a wetlands review only duplicates the requirements of the Section 404 process. That raises the possibility of differing and even conflicting requirements imposed through two separate processes to address exactly the

same issues at exac tly the same facility. Accordingly, to address impacts to wetlands, any location restrictions should only require that the facility obtain a wetlands permit if required to do so pursuant to CWA Section 404.

It is common to site power plants near rivers t o provide a source of fresh water for steam and to allow barge transportation of fuel. That is a matter of operational necessity. Wetlands are also often present near rivers. When it is necessary for a plant to develop or expand CCB disposal facilities, th e Section 404 process is the appropriate vehicle to address any possible impacts to wetlands. EPA should not attempt to use location disposal restrictions under RCRA to prejudge

or second

- guess what requirements may or may not be appropriate to preserve an d expand

wetlands areas.

Any existing facilities presumably either predate the wetlands program, received a valid wetlands permit, or did not impact wetlands. None of these circumstances provides cause for EPA today to impose retroactive wetlands require ments. To the extent an existing facility is located near wetlands, any potential impact is more than adequately addressed by other elements of the new CCB program, including groundwater monitoring, effluent discharge limits, and structural integrity inspe ctions and standards

Response: In support of the provisions finalized under RCRA subtitle D in this rule, EPA is citing several damage cas es, including 30 cases of “proven” damage to the environment that involve aquatic disposal of CCRs, 14 of which involve impacts to wetlands from release of

CCRs. In addition, other federal laws may be applicable in siting a CCR disposal unit in a wetland. These include: Sections 401, 402, and 404 of the C lean W ater A ct ; the Rivers and Harbors Act of 1989; the Nati onal Environmental Policy Act; the Migratory Bird Conservation Act; the Fish and Wildlife Coordination Act; the Coastal Zone Management Act; the Wild and Scenic Rivers Act; and the National Historic Preservati on Act. T he use of a wetlands location

for a C CR disposal unit may also require a permit from the U.S. Army Corps of Engineers. To the extent these are applicable, compliance with these RCRA criteria does not alleviate the need to comply with these other federal requirements, and the owner or operat or of the facility remains responsible for ensuring compliance with all applicable Federal and state requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06411

- 9 

### Organization 1 

### : Alabama Department of Environmental Management (ADEM)


### Commenter 1 : Gerald Hardy Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.1 7.1.2.1 

### Comment Excerpt Text: The Department feels strongly that its implementation of the RCRA Subt itle D program over the91

past 20+ years more than demonstrates the adequacy of Alabama's Solid Waste program. Under our State statutory authority and the associated regulations, ADEM implements a program that meets, and in some ways, exceeds the technical a nd administrative requirements of both the existing Subtitle D regulations as well as the proposal.

For example, under the proposed Subtitle D option, new and laterally expanded CCR landfills and surface impoundments would be required to be constructed " . . . a minimum of two feet above the upper limit of the natural water table. " (See p. 35241, §257.60(a)) Under ADEM's Solid Waste program regulations, groundwater elevation measurements must be taken during a specified time of the year and disposal facil ities must be designed and constructed so that the bottom elevation of the liners shall be a minimum of five feet above the highest measured groundwater level. (ADEM Admin. Code r. 335

- 13

- 4

- .11(2))

Response: EPA appreciates that the commenter feels stron gly about the adequacy of Alabama’s RCRA Subtitle D program. However, a s stated in the preamble to this final rule, these finalized regulations exist independent of any applicable state criteria, and do not c onstrain or direct state

action. In response to comments EPA is today fi nalizing a minimum buffer above the uppermost aquifer at five feet instead of two feet, because at least six States , including Alabama, consider five feet between the base of the surface impoundment and the top of the uppermost aqu ifer to be a minimum distance that is protective of human health and the environment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 51 

### Organization 1 

### : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)


### Commenter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.2 

### Comment Excerpt Text: The location require ments of placement within 2 feet of the top of the water table on p. 35199 of the preamble would prohibit new landfills and surface impoundments within 2 feet of natural water table. We object to this requirement, as it would affect designs for zone of sat uration landfills and gradient control systems, which utilities have successfully designed and operated in

Wisconsin.

Wisconsin rules (technical requirements in NR 504.06(4) and definition in NR 500.03(263), Wis. Adm. Code) allow the use of zone of satur ation landfills, which have a long history of use in high

- clay soil environments in portions of the State. Both clay

- lined and composite

- lined landfill designs have been approved and successfully constructed and operated for many years. This is

the sort of design that should not be banned because they provide for efficient use of space and favorable hydrogeologic formations, in parts of the State where landfill designs above the zone of saturation are not practical. This also an example where a Sub D approa ch is better, as our92

plan review staff are familiar with both technical requirements and geological requirements for this type of design and can tailor our regulations to individual site conditions.

Response: As stated in the preamble to this final rule, these regulations exist independent of any applicable state criteria, and do not constrain or direct state action. EPA understands that in some regions (such as areas of Florida or Wisconsin) it will be difficult or impo ssible to meet the

distance buffer requirement above the uppermost aquifer given t he hydrogeologic conditions. The Agency , however, has damage case evidence that implicates designs that have sited CCRs below the zone of saturation, and failure of some compacted clay liners, in

- situ clay liners and single membrane liners at CCR disposal facilities. To b e most protective, EPA believes that CCR surface impoundments should not be sited in sensitive locations. And even though costs are not relevant in determining the appropriate criteria under §4004(a), the risks from these units absent the five foot buffer between the base and uppermost aquifer being promulgated today far outweigh the costs of requiring surface impoundments to close or retrofit.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 38 

### Organization 1 

### : NiSource Corporate Services


### Commenter 1 : Dale A. Helmers Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

Placement Above Water Table (40 C.F.R. § 257.60)

For many years, landfills have been permitted, successfully operated and constructed in areas

below the natural water table. This section should allow for the construction of a CCR landfill or surface impoundment below the water tabl e if it meets certain performance standards. In addition, a determination of a site’s “natural” water table is arbitrary. It is subject to broad interpretation by permitting process stakeholders. For example, the definition of natural water

table does not factor in the hydraulic conductivity of the soil. This could limit the ability to excavate in areas of extensive natural low permeability clay. It is also unclear how areas of artesian zones would be affected by this definition. Furthermore, it is likely i mpossible to determine the natural water table in areas where pumping or other activities that influence the water table have been underway for many years

Response: EPA agrees that it is prudent to clarify the definition of natural water table. As some

co mmenters noted, there are many factors (hydrologic and geologic settings, nearby pumping, etc.) that influence the location of the groundwater table making it difficult to determine the “natural” level. We have considered other definitions and in today’s f inal rule have changed the criteria to replace “a base that is located above the upper limit of the natural water table” with “a base no less than 1.52 meters (five feet) above the uppermost aquifer”. In response to comments EPA is today finalizing this m inimum buffer at five feet instead of two feet, because at least six States consider five feet between the base of the surface impoundment and the top of the93

uppermost aquifer to be a minimum distance that is protective of human health and the

environment. To take into consideration the possibility of such large seasonal fluctuations, EPA is finalizing a change to the definition of “uppermost aquifer” to specify that measurement of the upper limit of the aquifer must be made at a point nearest to the natur al ground surface to which the aquifer rises during the wet season. The Agency believes that today’s finalized definition of “uppermost aquifer” encompasses large seasonal variations, and is a more appropriate parameter than “seasonal high ground water ta ble” because it is more clearly defined. In developing a ground water monitorin g program, it is important for an owner/operator to c onsider seasonal or temporal variations in groundwater flow patterns that contribute to fluctuations in the uppermost aquifer A owner/o perator should determine not only the location of water resources, but the sources and source patterns that contribute to or affect ground water patterns below the regulated

site.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06532

- 32 

### Organization 1 

### : Southern Illinois Power Cooperative


### Commenter 1 : Leonard F. Hopkins Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
Placement Above Water Table (40 C.F.R. § 257.60)

For many years, landfills have been permitted, successfully operated and constructed in areas

below the natural water table. This section should allow for the construction of a CCR lan dfill or surface impoundment below the water table if it meets certain performance standards. In addition, a determination of a site’s natural water table is arbitrary. It is subject to broad interpretation by permitting process stakeholders including proj ect advocates, regulatory agencies, and project opponents. For example, the definition of natural water table does not factor in the hydraulic conductivity of the soil. Furthermore, it is likely impossible to determine

the natural water table in areas wher e pumping or other activities have been underway for many

years

Response: EPA agrees that it is prudent to clarify the definition of natural water table. As some commenters noted, there are many factors (hydrologic and geologic settings, nearby pumping,

e tc.) that influence the location of the groundwater table making it difficult to determine the “natural” level. We have considered other definitions and in today’s final rule have changed the criteria to replace “a base that is located above the upper limi t of the natural water table” with “a base no less than 1.52 meters (five feet) above the uppermost aquifer”. In response to comments EPA is today finalizing this minimum buffer at five feet instead of two feet, because at least six

States consider five f

eet between the base of the surface impoundment and the top of the uppermost aquifer to be a minimum distance that is protective of human health and the environment. To take into consideration the possibility of such large seasonal fluctuations, EPA

is fi nalizing a change to the definition of “uppermost aquifer” to specify that measurement of the94

upper limit of the aquifer must be made at a point nearest to the natural ground surface to which the aquifer rises during the wet season. The Agency believes th at today’s finalized definition of “uppermost aquifer” encompasses large seasonal variations, and is a more appropriate parameter than “seasonal high ground water table” because it is more clearly defined. In developing a groundwater monitoring program, i t is important for an owner/operator to consider seasonal or temporal variations in groundwater flow patterns that contribute to fluctuations in the uppermost aquifer

. An owner/operator should determine not only the location of water resources, but the

so urces and source patterns that contribute to or affect groundwater patterns below the regulated

site.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06846

- 7 

### Organization 1 

### : Florida Department of Environmental Protection (FDEP)


### Commenter 1 : Richard B. Tedder on behalf Mary Jean Yon Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.2 

### Comment Excerpt Text: o In Part 257.60(a) EPA is requiring new CCR landfills, surface impoundments and lateral expansions be constructed with a base located a minimum of two feet above the natural water table. This requirement will not work in Florida since in many areas the water table is located within two feet of the ground surfa ce. The Department believes that if properly designed and constructed liner systems are built for these disposal areas, then the ground water will be protected. The Department recommends that this rule be changed to clarify that the liner system

for the di sposal area cannot be constructed in contact with the water table unless a demonstration can be provided that the liner system will not be damaged.

Response: EPA understands that in some regions (such as areas of Florida or Wisconsin) it will

be difficult or impossible to meet the distance buffer requirement above the uppermost aquifer given the hydrogeologic conditions. The Agency, however, has damage case evidence that implicates designs that have sited CCRs below the zone of saturation, and failure of s ome compacted clay liners, in

- situ clay liners and single membrane liners at CCR disposal facilities. To be most protective, EPA believes that CCR surface impoundments should not be sited in

contact with the water table And even though costs are not relev ant in determining the appropriate criteria under §4004(a), the risks from these units absent the five foot buffer between the base and uppermost aquifer being promulgated today far outweigh the costs of requiring surface impoundments to close or retrofit.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 35 

### Organization 1 

### : Nebraska Department of Environmental Quality (NDEQ)


### Commenter 1 : David B. Haldeman Commenter Type: State Government

Classification: Substantive95

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1 7.1.2 

### Comment Excerpt Text: Presented below are the locational criteria utilized in NDEQ’s permit program as excerpted from the regulations. NDEQ notes that EPA’s proposed locational criteria are simil ar to NDEQ’s and believes these criteria are protective of the environment.

“002 Locational Criteria. New fossil fuel combustion ash disposal areas and lateral expansions of existing fossil fuel combustion ash disposal areas shall be located in accordance with the standards as described in this section. The application shall include documentation verifying that the fossil fuel combustion ash disposal area complies with the following.

002.01 A fossil fuel combustion ash disposal area shall not be located i n an area where the Department finds that the solid waste activities will have a detrimental effect on the waters of the state based on the following criteria:

002.01A Current and projected use of water resources in the potential zone of influence of the site;

002.01B Ground water elevation and proposed separation between the lowest point of the lowest cell and the predicted maximum water table elevation; areas having high ground water tables may be restricted to landfill operations which will maintain a safe vertical distance between deposited refuse and the maximum water table elevation;

002.01C Potential interrelationship of the local aquifers, and surface waters based on historical records or other sources of information; and

002.01D Background and i nitial quality of water resources in the potential zone of influence of

the site.

002.02 The application shall include, a description of the:

002.02A Soil and bedrock to a depth adequate to allow evaluation of the water quality protection provided by the soil and bedrock;

002.02B Potential for leachate generation, and of pollution of the waters of the state;

002.02C Ground water condition, including ground water flow below and adjacent to the proposed facility, with an appraisal of the effect of the fac ility on ground water and surface

waters;

002.02D Name of and distance to nearby surface waters; and

002.02E Land use and population density of the proposed facility and of the area surrounding the facility within one mile of the facility boundaries.96

00 2.03 No person shall locate a fossil fuel combustion ash disposal area within one thousand (1,000) feet from the nearest edge of an existing right

- of

- way of any state, interstate or federal highway unless the active area is screened by natural objects, pla ntings, fences, or other appropriate means so as to not be visible from such highway.

002.04 Floodplains. A new fossil fuel combustion ash disposal area, or a lateral or vertical expansion of these facilities, shall not be located in a 100

- year flood plai n, unless the owner or operator can demonstrate that the disposal area will not restrict the flow of the 100

- year flood, reduce the temporary water storage capacity of the floodplain, or result in washout of solid waste so as to pose a hazard to human heal th and the environment.

002.05 Wetlands. A new fossil fuel combustion ash disposal area or lateral expansion shall not

be located in wetlands.

002.06 Unstable areas. An owner or operator of a new fossil fuel combustion ash disposal area, existing fossil fuel combustion ash disposal area, or lateral expansion located in an unstable area shall demonstrate in the permit application that engineering measures have been incorporated into the facility's design to ensure that the integrity of the containment syst ems of a fossil fuel combustion ash disposal area will not be disrupted.

002.06A An owner or operator shall consider the following factors, at a minimum, when determining whether an area is unstable:

002.06A1 On

- site or local soil conditions that may res ult in significant differential settling;

002.06A2 On

- site or local geologic or geomorphologic features; and

002.06A3 On

- site or local human

- made features or events, both surface and subsurface.

002.06A4 For purposes of this section,

002.06A4(a) "Unsta ble area" shall mean a location that is susceptible to natural or human

induced events or forces capable of impairing the integrity of some or all of the facility structural components responsible for preventing releases from the facility. This term may in clude poor foundation conditions, areas susceptible to mass movements, and Karst terranes.

002.06A4(b) "Poor foundation conditions" shall mean those areas where features exist which

indicate that a natural or human

- induced event may result in inadequate f oundation support for the structural components of a solid waste management facility.

002.06A4(c) "Areas susceptible to mass movements" shall mean those areas of influence (i.e., areas characterized as having an active or substantial possibility of mass m ovement) where the movement of earth material at, beneath, or adjacent to the solid waste management facility,

because of natural or human

- induced events, results in the down slope transport of soil and rock material by means of gravitational influence.97

0 02.06A4(c)(1) Areas of mass movement include, but are not limited to, landslides, avalanches, debris slides and flows, soil fluction, block sliding, and rock fall.

002.06A4(d) "Karst terranes" shall mean areas where karst topography, with its characterist ic surface and subterranean features, is developed as the result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present in karst terranes include, but are not limited to, sinkholes, sinking streams, cave s, large springs, and blind valleys.”

Response: EPA appreciates receiving this information regarding NDEQs regulations and permit

program. However, EPA has made no final determination regarding the adequacy of state programs. As stated in the preamble, t his final rule imposes no requirements on States to adopt these regulations, to develop a permit program, or submit a program covering these units to EPA for approval, as subtitle D of RCRA does not provide EPA such authority.



### Comment Number: EPA

- HQ

- RCR A

- 2009

- 0640

- 08218

- 31 

### Organization 1 

### : Maryland Department of the Environment (MDE)


### Commenter 1 : Shari T. Wilson Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Proposed Regulation 40 CFR 257.6 : Due to fluctuations in groundwater levels that in many geological settings can exceed 10 feet over the course of the year, the proposed 2’ minimum buffer between the base of the liner and the top of the water table is cons idered to be insufficiently protective. It is recommended that: 1. The minimum vertical separation be at least 3 feet from the base of the liner components; and 2. The distance should be measured from the top of the maximum anticipated occurrence of

grou ndwater, based on observation of the water table at the site for a specified time such as at least a year, geological observations of the formation, and observation of water level fluctuation in wells screened in the same formation and in a similar hydrolo gic setting, where available.

Response: As explained in the preamble, u nder finalized § 257.60(a) EPA is requiring new CCR landfills, existing and new CCR surface impoundments and all lateral expansions to be

constructed with a base that is located no le ss than 1.52 meters (five feet) above the uppermost aquifer. The Agency recognizes that local site

- specific hydrogeologic conditions within the aquifer may cause the natural groundwater table to exceed five feet and vary as much as ten feet.

To take into consideration the possibility of such large seasonal fluctuations, EPA has changed the definition of “uppermost aquifer” to specify that the measurement of the upper limit of the aquifer must be made at a point nearest to the natural ground surface to whi ch the aquifer rises during the wet season. The finalized definition of “uppermost aquifer” will encompass large98

seasonal variations, and is a more appropriate parameter than “seasonal high ground water table” because it is more clearly defined.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08225

- 18 

### Organization 1 

### : Minnesota Power (ALLETE)


### Commenter 1 : Michael G. Cashin Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Commen t Excerpt Text: Water Table Offset and Wetland Requirement, Engineering Standard Alternative. EPA should provide for an engineering standard that can be met by facilities that, due to location specific considerations, would seek to continue operation witho ut satisfying water table offset or wetlands requirements. For example, liner conditions (e.g. clay), hydrological conditions and monitoring well analysis should be able to provide a sound science means for variances, that are protective of the environment , from water table offset or wet land requirements.

Response: Since this rule is self

- implementing it lacks the oversight provided by a permit program. Because of the lack o f oversight controls, the EPA has chosen not to include provisions for waivers or variances in this final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 41 

### Organization 1 

### : Ohio Environmental Protection Agency


### Commenter 1 : Chris Korleski Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7 

### Comment Excerpt Text: Rule as proposed Sec. 257.60 Placement above the natural water table.

(a) New CCR landfills and new CCR surface impoundments and lateral expansions must

be constructed with a base that is located a minimum of two feet above the upper limit of

the natural water table.

(b) For purposes of this section, natural water table means the natural level at which water stands in a shallow well open along its length and penetrating the surfi cial deposits just deeply enough to encounter standing water at the bottom. This level is uninfluenced by groundwater pumping or other engineered activities.99

Ohio EPA believes this proposed rule will make it impossible to site a coal combustion residual (CCR) landfill or surface impoundment in Ohio. Ohio EPA recommends the proposed rule be changed to forbid the siting of a CCR landfill anywhere where the bottom of the CCR landfill liner would be within less than 5 feet of the uppermost aquifer.

The prop osed rule requires placement of a CCR landfill or surface impoundment “with a base that is located a minimum of two feet above the upper limit of the natural water table.” The upper limit of the natural water table is usually within two feet of the ground surface during the spring over much of Ohio. This is particularly true of areas with glacial clay drift deposits (about 50% of the state). In areas with no glacial drift (about 30% of the state), the upper limit of the natural high water table is expressed in seepage and spring discharges along hill slopes. This leaves areas that while having upper limits of the natural high water table below two feet of the ground surface also have vulnerabilities to ground water contamination (i.e. sand and gravel deposit s, karst areas, etc.).

The focus of this requirement should not be on the natural water table but instead on the uppermost aquifer. This is the resource that can provide water for public and private water supplies. The natural water table can be an expre ssion of the uppermost aquifer but usually is an expression of seasonally saturated low permeability sediments such as clayey glacial drift. These low permeability sediments do not produce enough water to qualify as an aquifer under the proposed rules let alone provide enough water for a private or public water supply.

Ohio has had a requirement for 19 years for landfills disposing of Flue Gas Desulfurization (FGD) sludge to maintain 5 feet of separation from the bottom of the landfill liner to the

upperm ost aquifer. This separation distance has proven protective of the aquifer, while allowing flexibility in where such landfills can be located.

Response: EPA agrees that it is prudent to clarify the definition of natural water table. As some

commenters note d, there are many factors (hydrologic and geologic settings, nearby pumping, etc.) that influence the location of the groundwater table making it difficult to determine the “natural” level. We have considered other definitions and in today’s final rule hav e changed the criteria to replace “a base that is located above the upper limit of the natural water table” with “a base no less than 1.52 meters (five feet) above the uppermost aquifer”. In response to comments EPA is today finalizing this minimum buffer at five feet instead of two feet, because at least six

States , including Ohio, consider five feet between the base of the surface impoundment (or landfill) and the top of the uppermost aquifer to be a minimum distance that is protective of

human health an d the environment. However, t o take into consideration the possibility of such large seasonal groundwater fluctuations, EPA is finalizing a change to the definition of “uppermost aquifer” to specify that measurement of the upper limit of the aquifer must be made at a point nearest to the natural ground surface to which the aquifer rises during the wet season. The Agency believes that today’s finalized definition of “uppermost aquifer” encompasses large seasonal variations, and is a more appropriate parame ter than “seasonal high ground water table” because it is more clearly defined.100



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 64 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC)


### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
Placement Above Water Table (40 C.F.R. § 257.60) For many years, landfills have been permitted, successfully operated and constructed in are as below the natural water table. This section should allow for the construction of a CCR landfill or surface impoundment below the water table if it meets certain performance standards. In addition, a determination of a site's "natural" water table is arb itrary. It is subject to broad interpretation by permitting process stakeholders. For example, the definition of natural water table does not factor in the hydraulic conductivity of the soil. This could limit the ability to

excavate in areas of extensive n atural low permeability clay. It is also unclear how areas of artesian zones would be affected by this definition. Furthermore, it is likely impossible to determine the natural water table in areas where pumping or other activities have been underway

for m any years.

Response: EPA agrees that it is prudent to clarify the definition of natural water table. As some commenters noted, there are many factors (hydrologic and geologic settings, nearby pumping, etc.) that influence the location of the groundwater table making it difficu lt to determine the “natural” level. We have considered other definitions and in today’s final rule have changed the criteria to replace “a base that is located above the upper limit of the natural water table” with “a base no less than 1.52 meters (five f eet) above the uppermost aquifer”. In response to comments EPA is today finalizing this minimum buffer at five feet instead of two feet, because at least six States consider five feet between the base of the surface impoundment and the top of the

uppermos t aquifer to be a minimum distance that is protective of human health and the environment. To take into consideration the possibility of such large seasonal fluctuations, EPA is finalizing a change to the definition of “uppermost aquifer” to specify that measurement of the upper limit of the aquifer must be made at a point nearest to the natural ground surface to which the aquifer rises during the wet season. The Agency believes that today’s finalized definition of “uppermost aquifer” encompasses large se asonal variations, and is a more appropriate parameter than “seasonal high ground water table” because it is more clearly defined. In developing a groundwater monitoring program, it is important for an owner/operator to consider seasonal or temporal varia tions in groundwater flow patterns that contribute to fluctuations in the uppermost aquifer A owner/operator should determine not only the location of water resources, but the sources and source patterns that contribute to or affect groundwater patterns be low the regulated

site.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09282

- 14 

### Organization 1 

### : North Carolina Department of Environment and Natural Resources


### Commenter 1 : Dexter R. Matthews101

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

Distance to Groundwater:

§257.60 Placement above the natural water table (a) should read: “(a) New CCR landfills and lateral expansions and New CCR Surface impoundments and l ateral expansions must be constructed with a base that is located a minimum of two four feet above the upper limit of the natural water table.”

The above clarifies that lateral expansions of landfills must meet the standard, and that the

distance from the liner to the upper limit of the natural seasonal high water table should be increased from two feet to a minimum of four feet, as is required in North Carolina.

Response: In response to comment s , in this finalized rule §257.60(a) has been modified as

fol lows:

§ 257.60 Placement above the uppermost aquifer.

(a) New CCR landfills, existing and new CCR surface impoundments, and all lateral expansions of CCR landfills and CCR surface impoundments must be constructed with a base

that is located no less than 1.52 meters (five feet) above the upper limit of the uppermost aquifer

.

EPA is today finalizing this minimum buffer at five feet instead of two feet, because at least six States consider five feet between the base of the surface impoundment and the top of the uppermost aquifer to be a minimum distance that is protective of human health and the

environment. In this final rule the Agency is also replacing ‘water table’ with ‘uppermost aquifer’ to make it consistent with the way natural underground water sou rces are described

elsewhere in the rule. EPA is finalizing a change to the definition of “uppermost aquifer” to specify that measurement of the upper limit of the aquifer must be made at a point nearest to the natural ground surface to which the aquifer r ises during the wet season. The Agency believes that today’s finalized definition of “uppermost aquifer” encompasses large seasonal variations, and is a more appropriate parameter than “seasonal high ground water table” because it is more clearly defined.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 20 

### Organization 1 

### : Virginia Department of Environmental Quality


### Commenter 1 : Jeffery A. Steers Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:102

Other Sections: 4.7 

### Comment Excerpt Text: Section 257.60 Proposed Rule

Sec. 257.60 Placement above the natural water table. (a) New CCR landfills and new CCR surface impoundments and lateral expansions must be

constructed with a base that i s located a minimum of two feet above the upper limit of the natural

water table. (b) For purposes of this section, natural water table means the natural level at which water stands in a shallow well open along its length and penetrating the surficial depo sits just deeply enough to encounter standing water at the bottom. This level is uninfluenced by groundwater pumping or other engineered activities.

This proposed language is confusing. We believe that the maximum seasonal high water table is

a threshold that can be measured through indicators such as soil morphology or field measurements and the use of the maximum seasonal high water table is an appropriate measure of the upper limit of the natural water table. We request this section to be modified to re ad as

follows:

Sec. 257.40

- include a new term and definition

- "Maximum seasonal water table" means the highest level of a saturated zone (the apparent or perched water table) over a continuous period of more than two weeks in most years, but not a perman ent water table.

Sec. 257.60 Placement above the uppermost aquifer. New CCR landfills and new CCR surface impoundments and lateral expansions must be

constructed with a base that is located a minimum of two feet above the maximum seasonal

water table as d efined in proposed regulation 257.40 and certified by a qualified groundwater scientist, professional geologist, or professional engineer.

Response: In this final rule EPA has changed the criteria to replace “a base that is located above the upper limit of the natural water table” with “a base no less than 1.52 meters (five feet) above the uppermost aquifer”. In response to comments EPA is today finalizing this minimum buffer at five feet instead of two feet, because at least six States consider five feet between the base of the surface impoundment and the top of the uppermost aquifer to be a minimum distance that is protective of human health and the environment. In this fina l rule the Agency is also replacing ‘water table’ with ‘uppermost aquifer’ to make it consistent with the way natural underground

water sources are described elsewhere in the rule. Moreover, EPA is finalizing a change to the definition of “uppermost aqui fer” to specify that measurement of the upper limit of the aquifer must be made at a point nearest to the natural ground surface to which the aquifer rises during the wet season. The Agency believes that today’s finalized definition of “uppermost aquifer” encompasses large seasonal variations, and is a more appropriate parameter than “seasonal high ground water table” because it is more clearly defined

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 28 

### Organization 1 

### : Arizona Department of Environmental Quali ty (ADEQ)


### Commenter 1 : Benjamin H. Grumbles103

Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7 

### Comment Excerpt Text: Pg. 35241, Section 257.60: The definition of “natural water table” should be clarified. As written, a natural water table could not be specified with any degree of certainty in many parts of Arizona due to long

- term and seasonal changes in water levels cau sed by groundwater pumpage and artificial and natural recharge. The proposed definition could potentially be a constantly moving target for regulators since water levels in some areas fluctuate significantly in short time periods depending on seasonal pump age for irrigation and other groundwater uses.

Response: EPA agrees that it is prudent to clarify the definition of ‘ natural water table ’ . As some commenters noted, there are many factors (hydrologic and geologic settings, nearby pumping, etc.) that influ ence the location of the groundwater table making it difficult to determine the “natural” level. We have considered other definitions and in today’s final rule have changed the criteria to replace “a base that is located above the upper limit of the natura l water table” with “a base no less than 1.52 meters (five feet) above the uppermost aquifer”. In response to comments EPA is today finalizing this minimum buffer at five feet instead of two feet, because at least six States consider five feet between the base of the surface impoundment and the top of the uppermost aquifer to be a minimum distance that is protective of human health and the environment. To take into consideration the possibility of such large seasonal fluctuations, EPA is finalizing a chan ge to the definition of “uppermost aquifer” to specify that measurement of the upper limit of the aquifer must be made at a point nearest to the natural ground surface to which the aquifer rises during the wet season. The Agency believes that today’s fina lized definition of “uppermost aquifer” encompasses large seasonal variations, and is a more appropriate parameter than “seasonal high ground water table” because it is more clearly defined. In developing a groundwater monitoring program, it is important for an owner/operator to consider seasonal or temporal variations in groundwater flow patterns that contribute to fluctuations in the uppermost aquifer A owner/operator should determine not only the location of water resources, but the sources and source p atterns that contribute to or affect groundwater patterns below the regulated site.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09880

- 15 

### Organization 1 

### : FirstEnergy Corporation


### Commenter 1 : Michael L. Horvath Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.3.1 

### Comment Excerpt Text: VII. Incorporation of Seismic Performance104

16. EPA intends to incorporate seismic performance in section 257.63 of th e proposed rule. One alternative suggested by EPA is the use of seismic impact zones. A second alternative suggests adopting criteria of the National Earthquake Hazards Reduction Program (NEHRP) of the U.S. Geological Survey, which was used to develop nati onal seismic hazard maps. It appears the horizontal acceleration expressed as 0.01g in 250 years in the agency's first approach closely matches the 2% ground motion probability in 50 years that the seismic maps are based upon. Considering both standards ar e established for a hazard level intended to meet building codes for occupied buildings, these levels appear to be overly protective for engineered landfills and surface impoundment dams, which already contain significant factors of safety in their designs

. It is also important to consider that a seismic event could pose different types of harm from a well constructed wet disposal facility than from an equally well constructed dry disposal facility. While a release from a dry disposal site could do some rep airable damage on the disposal site property, a release from a wet disposal site could have higher potential for off

- site damage. Thus, FirstEnergy recommends that different seismic parameters be established for dry vs. wet disposal

facilities as follows:

• New dry disposal landfill seismic location criteria established not to exceed 20% ground motion probability in 50 years

• New wet disposal landfill seismic location criteria established not to exceed 10% ground motion probability in 50 years

Response: While EPA agrees that seismic hazards posed by facilities could be different on a

site

- specific basis, the commenter has not pro vided information to support either the claim that the seismic performance standard is overly protective for engineered landfills and surface impoundment dams

, or the claim that wet CCR disposal facilities should have more stringent seismic performance requirements than dry CCR disposal facilit ies. While new CCR units could be designed with static factors of safety, without the provisions of this rule those units located in seismic impact zones still might not be designed to withstand seismic stress es.

Section 4.4.4.7

- EPA solicits comment o n necessary costs to retrofit CCR disposal units to meet proposed performance standards on siting facilities with placement above water table or in wetlands, unstable areas (i.e., poor foundation conditions, areas susceptible to mass movement, karst terrac es), fault areas, or seismic impact zones (35198, 35223) Total Number of Submissions: 8 Total Number of Comments: 8



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06018

- 5 

### Organization 1 

### : Indiana Department of Environmental Management (IDEM)


### Commenter 1 : Thomas W. Easterly Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:105

Other Sections: 4.4.4.6 

### Comment Excerpt Text: One of the examples of a discrepancy between the proposed Subtitle D approa ch for CCRs and MSWLFs is a requirement of placement of CCRs above the water table, which is not a requirement for MSWLFs.

Response: While EPA in its approach to this final rule drew heavily on 40 CFR Part 258 standards for MSWLFs, there is no statutory requirement that the two rules have equivalent

standards

. In developing today’s finalized standards, it is sufficient for EPA to establish a factual record demonstrating that the specific location restrictions in the final rule are necessary for CCR disposal units (landfills and surface impoundments), as a class, to ensure that there will be no reasonable probability of adverse effects on health or the environment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 77 

### Organization 1 

### : Kentucky Department for Environmental Protection


### Commenter 1 : R. Bruce Scott Commenter Type: State Government

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Most ash landfills and surface impoundme nts in Kentucky should be able to meet the standards for existing facilities. Some lateral expansions of existing surface impoundments would probably not meet the above the groundwater table requirement, and might have to close instead. Kentucky does not h ave data on costs to retrofit CCR disposal units to meet the standards.

Response: The Agency appreciates this information from the State of Kentucky on the costs to meet the finalized performance standards in this final rule. I f a CCR surface impoundmen t does have to close due to a lack of disposal capacity, the facility may be eligible, in certain circumstances, for an extension of time to find additional capacity before it must begin closure of

the unit.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06541

- 4 

### Organization 1 

### : Large Public Power Council (LPPC)


### Commenter 1 : Brian H. Moeck, LPPC Environmental Task Force Commenter Type: Trade Association

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/ Due:



### Comment Excerpt Text: As a threshold matter, it should be noted that the retrofit requirement is tantamount to ordering the closure of all existing CCR surface impoundments, because retrofitting is neither realistic nor106

practical. In order to retrof it an existing CCR surface impoundment, a facility would either have to suspend the generation of electricity, or find replacement capacity to manage the CCRs that would be generated during the retrofit process. Even assuming that sufficient space, meeting all siting criteria, is available for construction of the replacement capacity, the facility would still have to apply for and receive applicable permits for it. Finally, assuming that the facility successfully navigates that time

- consuming and uncertain process, and then constructs a new CCR surface impoundment meeting all liner and stability requirements, there would no longer be any reason to retrofit the older unit. Instead, it would be closed. With respect to EPA’s rationale for imposing a retrofit re quirement under Subtitle D, it would appear that EPA is relying on its analysis of CCR “damage cases” and on its quantitative groundwater risk assessment. Id. at 35202. LPPC respectfully submits that even assuming such information is sufficient to support EPA’s preventative approach to the prospective construction of new CCR surface impoundments, it does not justify the retroactive application of those requirements to all existing CCR surface impoundments

– including those that do not present any real threa t of contamination (for example, because of their location, or because they have liners)

– particularly when the effect of that retroactive application would be to force the closure of the affected units

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply location restrictions to existing surface impoundments or landfills. In the proposed rule preamble, EPA explained the rationale for applying today’s provisions to existing CCR surface impoundments, and the commen ters have submitted nothing to rebut that rationale. Thus, EPA maintains its determination that application of the location standards to existing CCR surface impoundments is necessary to achieve the standard in section 4004(a). Absent the location

restri ctions being promulgated, the risk of impacts to human health and the environment from the rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas would exceed acceptable levels. In developing the finalized requirement s the statute does not permit th e Agency to consider the costs

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07799

- 2 

### Organization 1 

### : Municipal Electric Authority of Georgia (MEAG Power)


### Commenter 1 : Brad Spooner Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA’s proposal that existing CCB surface impoundments must be retrofitted under the Subtitle D approach is not a realistic or practical optio n. There is no discussion in the record of EPA’s rationale for imposing such a requirement under the Subtitle D approach, nor is it supported by any comprehensive cost

- benefit analysis. To the contrary, the available information in the record

demonstrates that a retrofitting requirement under Subtitle D is unnecessary.

Response: EPA disagrees with the commenter’s assertion that the finalized provisions under Subtitle D requires a facility to retrofit an existing CCR surface impoundment. As stated in the

pr eamble of the proposal, and finalized today, these location restrictions mean that facilities need107

to either demonstrate that the surface impoundment meets the performance standard that serves as the alternative to the prohibition, retrofit the unit so that it can meet the performance standard,

or close. In developing the finalized requirements the statute does not permit the Agency to

consider the costs.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08270

- 2 

### Organization 1 

### : Cliffs Natural Resources Inc. (Cliffs)


### Commenter 1 : David Z. Skolasinski Commenter Type: Other Company

Classification: Substantive Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.2.1 5.4.1 5.5.2 9.3.8 9.4.7 

### Comment Excerpt Text: In addition to the active CCR landfill at NOlihshore Mining, Cliffs also purchased a m ine during

2001 that was in bankr uptcy that included a captive coal

- fired power plant with a CCR landfill that was closed and reclaimed in 1994 and undergoing post closur e monitoring with a series of groundwater monitoring wells. Over fifteen years of monitoring data clearly demonstrates that the landfill is not resulting in a negative impact to the groundwater. Should EPA decide to retroactively designate the CCRs in this landfill and the SBP landfill as hazardous waste, it

would cost several tens of millions o f dollars to excavate, transport , and dispose of the CCRs in a Subtitle C hazardous waste permitted facility with no environmental benefit. To the contrary, shipment of the CCRs to a currently permitted hazardous waste facility would needlessly consume landfill space that would more appropriately be used for disposal of truly hazardous wastes that would, in fact, result in environmental hmm if not disposed in such a l andfill.

Response: As explained is this finalized rule, the Agency believes coal ash disposal is appropriately handled using its Subtitle D authorities. Therefore

, the commenter is not required to incur costs to transport CCR wastes to a hazardous waste per mitted facility

.